Himanshu Chordia vs State Of Rajasthan

2026 INSC 778 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No(s). OF 2026 (Arising out of Special Leave Petition (Crl.) No(s).3171 of 2025)

HIMANSHU CHORDIA …APPELLANT (S)

VERSUS

STATE OF RAJASTHAN & ANR. …RESPONDENT (S)

JUDGMENT

SANJAY KAROL, J.

1. Leave granted.

2. The question in this appeal is best explained by way of an illustration: A and B are husband and wife. Due to strained relations between them, they began living separately, and B filed for maintenance. One of the primary reasons, as alleged by A for their separation, is the promiscuity of B and her adulterous relationship with other people. In such a scenario, is A obligated to pay B interim or final maintenance?

3. The factual and legal backdrop of this appeal is as follows:

NAVEEN D

3.1 Himanshu Chordia, the appellant, married Arushi Jain, Respondent

no. 2, on 7th July 2014. Trouble started brewing a few years into their

marriage, which resulted in, allegedly, the hurling of allegations by

Respondent no.2 towards the appellant and also some complaints before the

Bangalore Police. She finally left her matrimonial home on 13th May 2020

along with the child born from this union and her valuables. On 5th

November 2020, she filed an application under Section 125 of the Code of

Criminal Procedure, 1973,1 being Main Case No. 570/2021, and an

application for interim maintenance bearing number 1328/2021, before the

Special Additional Chief Judicial Magistrate, PCPNDT Cases, Udaipur.

Almost contemporaneously, but in fact, prior in point of time, the Appellant

had filed applications under the Guardians and Wards Act, 1890, which is

not the subject matter before us. After some back and forth litigation,

including both the parties approaching the High Court for one thing or

another, the proceedings to decide Respondent No.2’s case started in earnest

on 6th October 2023 after the High Court, in a Criminal Miscellaneous

Petition filed by Respondent no. 2, directed the Court seized of the

maintenance case to decide the same within 3 months.

3.2 In such proceedings, the appellant filed an application under Section

125(4), CrPC contending that on account of adulterous relationships,

Respondent No.2 is not entitled to any interim maintenance, given the

express bar contained in the section. It is the Appellant’s case that he filed

1 CrPC proof to substantiate his allegation not only in the main application but also

by way of additional affidavits. The Respondent No.2 then filed an

application for modification of the order dated 4th October 2023, asking for

the interim application for maintenance to be decided within 3 months,

which came to be allowed by order dated 4th December 2023. This ex-parte

order was sought to be set aside by the Appellant by way of another Criminal

Miscellaneous Petition bearing No. 522 of 2023 which is pending before the

High Court.

3.3 The Special Additional Chief Judicial Magistrate2, PCPNDT Cases,

Udaipur dismissed the Appellant’s application under Section 125(4) CrPC

along with an application under Section 91 CrPC vide order dated 27th June

2024. The operative portion of the order is as under: -

“During the arguments, the Ld. Counsel for the petitioner said that the petitioners was at different place on the date and time as mentioned in the petitioner’s documents. The petitioner has also presented some documents in support of her claim showing her presence at different place than the documents. The respondent’s allegations regarding the petitioner’s adultery with Deepak Mundra are mainly based on photographs and CD. However, the court cannot conclude on the authenticity and originality of these documents at this stage.

The authenticity and originality of all these documents can only be determined after evidence are exhibited. All the facts mentioned in the present application can only be determined after the exhibition of evidence in the main petition of Section 125 of the petitioner on merits. It is also noteworthy that in this case, apart from the respondent Aarushi, the respondent’s son Charvik is also a party. In this situation, the petitioner’s prayer for interim stay order cannot be dismissed. Therefore, while safeguarding the respondent’s rights to decide the objections mentioned in his application at appropriate stage in the main case, this present application under Section 125(4) is disposed of.” (emphasis supplied)

2 ‘Trial Court’ 3.4 Vide the same order, the Court also dismissed the Appellant’s

application under Section 91, CrPC. The discussion with regard thereto is as

follows:

“The court is of the opinion on the respondent’s application under CrPC 91 is that the respondent prayed for obtaining information from various institutions/departments regarding the petitioner’s bank accounts and deposits of last five years, accounts linked with petitioner’s mobile number, Petitioner’s so called paramour Deepak Mundra’s last five year’s call details with location information, petitioner’s Instagram accounts details, owner/ rent agreement/ licence of AZRAA Bridal Studio, Ashok Nagar, Udaipur, petitioner’s last 9 years ITR, ownership details of flat no. 501,502,503 Hitawala tower, Bhuwana, Udaipur. The respondent has not stated about his attempts to gather all these information at his own. Respondent has also not stated anything to get these information apart from the court. As far as the petitioner’s bank statements and account details are concerned, it is to be mentioned that the petitioner has submitted her last three years of ITRs making it needless to seek for her all bank details and account statements. In view of the above, the respondent’s application is dismissed.

Ordersheet is pending for application of interim maintenance. The parties are directed to argue on that application mandatorily on the next date of hearing. Case diary to be called for arguments on interim stay order on 01.07.2024.

Ambika Solanki, Special ACJM”

3.5 The Appellant filed a quashing petition against these two orders, and

the order granting interim maintenance by the Trial Court vide order dated

30th July 2024, which was to the tune of Rs. 25,000 each to Respondent No.2

and their son.

3.6 The impugned judgment by the High Court in the petition seeking

quashing of the order dated 27th June 2024, whereby his application under

Section 125(4) CrPC was rejected. The Court held:

“2.1. It is not disputed that ground of infidelity and the wife is living adulterous life can also be considered by the Court at the time of hearing on an application seeking interim maintenance. In the instance case, the learned Magistrate gave opportunity to the petitioner and then passed the order of interim maintenance and the legality, correctness and propriety of the same is under challenge before the Court of Sessions.

2.2. The petitioner seeks interference of this Court so as to decide the controversy of adulterous life of the respondent-wife as preliminary issue. There is no provision in the Cr.P.C. that mandates adjudication of such an issue before deciding an application for interim maintenance. The submissions with regard to the above has already been considered by the learned trial Court before passing the order of interim maintenance and a further appreciation of which is pending adjudication before the Court of revision.

2.3. This Court feels that the submission of the petitioner is a counter/rebuttal of the main issue, the principal fact that the wife is entitled to get maintenance. As on date, it can be that the above is the disputed question of fact and for which, both the parties should be allowed to adduce evidence and the same adjudicated by the trial Court at the time of final disposal of the inquiry under Section 125 Cr.P.C.

3. In view of the above, this Court finds no merit in the present petition. The same is accordingly dismissed. The stay petition stands disposed of.…”

4. We have heard the learned Counsel for the parties. In order to adjudicate

the correctness of the finding in the High Court, we must first consider the object

of maintenance; the nature of proceedings under Section 125 of the CrPC; and

the contours of Section 125(4). Only thereafter can we consider the question

whether the issue of adultery, as it appears in Section 125(4), can be decided as a

preliminary issue or is it only capable of decision at the time of final adjudication.

5. The basic idea behind the grant of maintenance, regardless of the

legislation in which this right appears, is to ensure that neglect and destitution are

prevented for people who are unable to provide for themselves, for instance, a

spouse, child or even parents, by imposing an obligation under law upon those who can, or have sufficient means to, provide for those who are unable to

maintain themselves. Such law is intended to ensure that individuals unable to

provide for themselves have means of securing the essential aspects of a dignified

life. It is a means of implementing accountability for those persons who ignore

their responsibilities towards family members and dependents. Section 125 reads

thus :

“125. Order for maintenance of wives, children and parents. (1)If any person having sufficient means neglects or refuses to maintain –

(a)his wife, unable to maintain herself, or

(b)his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c)his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d)his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] .

Explanation. - For the purposes of this Chapter, -(a)"minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority,

(b)"wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married.

(2)[ Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(3)If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing .Explanation. - If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

(4)No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may befrom her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5)On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

(emphasis supplied)

6. A perusal of various decisions rendered by this Court over time reveals the

following features of proceedings under Section 125 CrPC:

6.1 Proceedings under this section are summary in nature, designed to

be speedy, aimed to avoid difficulty on the part of the seeking party. In other

words, it seeks to prevent vagrancy and destitution. [See: Dukhtar Jahan v.

Mohd. Farooq3; Vimala (K.) v. Veeraswamy (K.)4; Nagendrappa Natikar

v. Neelamma5; Danial Latifi v. Union of India6; Rajnesh v Neha7]

6.2 Maintenance proceedings are essentially civil in nature. Thus, the

standard of proof applicable is not beyond reasonable doubt as would be in

other criminal matters. [Dwarika Prasad Satpathy v. Bidyut Prava Dixit8;

Chanmuniya v. Virendra Kumar Singh Kushwaha9; Kamala v. M.R.

Mohan Kumar10; Rina Kumari v. Dinesh Kumar Mahto11; Iqbal Bano v.

State of U.P.12]

6.3 Only such person who is unable to maintain herself may seek

maintenance hereunder. [See: Bhagwan Dutt v. Kamla Devi13, Chaturbhuj

v. Sita Bai14]

6.4 The wife seeking maintenance must show that she is unable to

maintain herself and concomitantly show that the husband has the means to

do so. [See: Mohd. Ahmed Khan v. Shah Bano Begum15; Mohd. Abdul

Samad v. State of Telangana16]

6.5 The provision does not recognise any religion and applies to all

3 (1987) 1 SCC 624 2-Judge bench 4 (1991) 2 SCC 375 3-Judge Bench 5 (2014) 14 SCC 452 2-Judge bench 6 (2001) 7 SCC 740 5-Judge bench 7 (2021) 2 SCC 324 2-Judge bench 8 (1999) 7 SCC 675 2-Judge bench 9 (2011) 1 SCC 141 2-Judge bench 10 (2019) 11 SCC 491 2-Judge bench 11 (2025) 3 SCC 33 2-Judge bench 12 (2007) 6 SCC 785 2-Judge bench 13 (1975) 2 SCC 386 3-Judge bench 14 (2008) 2 SCC 316 2-Judge bench 15 (1985) 2 SCC 556 5-Judge bench 16 (2025) 2 SCC 49 2-Judge bench parties irrespective of the religion they profess. [See: Mohd. Abdul

Samad(supra)]

6.6 The order made under this Section is subject to final determination

by the Civil Court. [Inderjit Kaur v. Union of India17; Mohd. Abdul Samad

(supra)]

6.7 A decree of restitution of conjugal rights does not bar the payment

of maintenance under this Section and would not count as disqualification

under clause 4 thereof. If the wife refuses to comply, it has to be seen on the

facts whether such refusal is justified. [See: Rina Kumari (supra)]

6.8 A decree of divorce does not foreclose the relief under Section 125

CrPC. Section 125(4), which is an exception to the general rule under this

section, does not include within its ambit a divorced woman. [See:

Vanamala v. H.M. Ranganatha Bhatta18, Swapan Kumar Banerjee v. State

of W.B.19]

7. It cannot be gainsaid that the provision is oriented towards social justice; it

is secular; and is aimed at providing a sense of sustenance with dignity for those

who are unable to provide for themselves. Given its beneficent nature, the

principles that govern an application made under this Section, culled out supra,

have to be interpreted liberally, keeping in view the desired goal.

8. A perusal of the CrPC reveals that the stipulation under Section 125(4) was

17 (1990) 1 SCC 344 2-Judge bench 18 (1995) 5 SCC 299 2-Judge bench 19 (2020) 19 SCC 342 2-Judge bench inserted vide amendment in 2001. This indicates that the legislature sought to

address a situation where there is, among other possibilities, adultery on part of

the wife. The Statement of Objects and Reasons of the said amendment read as

under:

“It has been observed that an applicant, after filing application in a court under section 125 of the Code of Criminal Procedure, 1973, has to wait for several years for getting relief from the court. It is, therefore, felt that express provisions should be made in the Code for interim maintenance allowance to the aggrieved person under said section 125 of the Code. Accordingly, it is proposed that during the pendency of the proceedings, the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonable, to the aggrieved person. It is also proposed that this order be made ordinarily within sixty days from the date of the service of the notice…” (emphasis supplied)

9. As already reproduced supra, a perusal of the clause suggests maintenance

shall be denied if the wife lives in adultery or without any sufficient reason refuses

to live with her husband or is living separately by mutual consent. The text of the

statute itself points to the answer to the question raised in this appeal. Sub-section

(4) of Section 125 provides that if adultery is established, the wife claiming

maintenance would not be entitled to the same as an interim measure and

therefore, obviously, not even as a final measure. Sub-section (5) thereof makes

it even more obvious.

10. Once a petition under Section 125(1) is made before the concerned court,

and the person from whom maintenance is sought makes an application under

Section 125(4), determination thereof, would depend upon the facts and

circumstances of each case; as also the kind of evidence presented in reference to

application filed under Section 125(4); whether the interim maintenance so

granted to the applicant under the proviso to sub-section (1) of Section 125, would

continue to obtain or not.

11. The second proviso to Section 125(1) makes provision for interim

maintenance and expenses of proceedings. It is clear therefore that the intent is

for the maintenance allowance to reach the applicant expeditiously. It cannot be

said as such, that once an application under the latter Section 125(4) has been

made, even the payment of interim maintenance in the interregnum, till such

application is decided, will be stopped. If it is concluded that the said application

has merit, then the interim order would be vacated. If it is concluded otherwise,

the interim order would be confirmed/modified. To put it plainly, the pendency

of a 125(4) application would not per se bar the applicant from receiving interim

maintenance on the ground that the said sub-section uses the word ‘interim

maintenance’ also. If such a view is accepted, the payment of maintenance would

be perpetually contingent on the decision in 125(4), which may, given the nature

of the allegation, take considerable time in reaching its final conclusion.

12. Put clearly, it has to be observed that an application for maintenance is

stage one of the proceedings wherein by virtue of the second proviso, the court

may, circumstances permitting, award interim maintenance. The application

under Section 125(4) is stage two and it is the decision in stage two which will

determine whether the application reaches the final stage i.e. order of

maintenance under Section 125(1) or not. What is provided by Section 125(5)

accounts for a situation that is subsequent to final order having been made in stage

three.

13. The above discussion can be explained through illustrations. A is the wife

and B is the husband.

13.1 In the first scenario, A files for maintenance. Husband enters

appearance and the concerned court awards interim maintenance. On a

subsequent date, B files an application under Section 125(4). Here, there

are two possibilities. If the evidence presented along with the application

establishes one of the three situations contemplated in Section 125(4) on

the “face of it” or if the situation is that the existence of either of the three

scenarios is “admitted”, then the interim maintenance would be stopped

and the application for maintenance would be dismissed. If the evidence

is required to be proved in accordance with law, the court would undertake

a review of the evidence and only after being convinced of its merit, make

an order thereupon. In this intervening period between the date of filing

the application and the order under Section 125(4), interim maintenance

would continue.

13.2 In the second scenario, B while entering appearance in A’s

application for maintenance, on the same day, files an application under

Section 125(4), then, if the evidence is “admitted”/demonstrates the

factual situation on first blush regarding the three scenarios, where

maintenance would not be payable by B, then on the very day it is

established before the Court, interim maintenance would become a non

starter. If again, the evidence is required to be proved in accordance with

law, for the time that the court is considering such evidence to arrive at a

conclusion, the payment of interim maintenance would continue.

14. To reiterate, if the application for maintenance is to be denied at the interim

stage itself, the party having filed the application under Section 125(4) must

present clear and cogent evidence that would ex-facie establish adultery on part

of the claimant for maintenance.

15. We turn our attention, now, to the present facts, wherein the appellant

places reliance on Section 125(4) to oppose, in general, respondent no. 2’s

application for maintenance. As extracted supra, it was the appellant’s case before

the High Court that his allegations of adultery against Respondent No.2 should

be decided as a preliminary issue which would then have a bearing on whether

maintenance (interim or otherwise) is to be paid to Respondent No.2 at all or not.

16. In essence, we are to decide whether allegations of adultery, when made,

have to be decided at the first instance so as to, if proved, take away the

entitlement of the wife to maintenance or is it to be decided at the stage of final

adjudication. Adultery, if proved, takes away maintenance from the wife, then the

application to prove such a fact has to be decided between the order granting

interim maintenance and final adjudication of such application for maintenance.

17. At this stage, a segue into how an allegation of adultery can be/is to be proved may be warranted. Evidence is of two types, direct and circumstantial.

The former is the kind that establishes, on the face of it, an allegation.

18. It is obvious that when a case is sought to be proved by circumstantial evidence, it requires a detailed study of the circumstances presented. The evidence furnished in support thereof, including verification, particularly when the evidence in question is electronic, etc. These procedures are bound to take time. Since the stipulation in the Section 125 (4) is that if adultery is proved, the wife would neither be entitled to interim nor final maintenance, we are of the view that if a husband files an application under Section 125(4) and is, at the first instance, able to establish the charge through evidence ex facie, then only, there can be said to be a bar to interim maintenance.

19. The courts below clearly fell into error to hold that it was only at the stage of final adjudication that such a question could be decided. This view would render otiose what has been provided in the statute.

20. Applying this understanding to the record, in order to establish that the Respondent No. 2 was living in adultery, the appellant has placed a number of photographs and other evidence. This evidence is obviously electronic in nature.

The question that the court must consider at the stage of interim maintenance is whether the evidence so presented establishes adultery. It is obviously open for the Respondent No. 2 to dispute the correctness and legality of the evidence presented, which would then have to be considered by the Court.

In that view of the matter, we are of the view that the Trial Court ought to have decided the appellant’s application under Section 125(4). It was incorrect for them to have observed that the appellant’s application could not have been decided prior to the final adjudication of the application filed by the wife. The second proviso to sub-section (1) of Section 125 provides for interim maintenance; and as such, the logical flow of proceedings would be that once the basic facts are established, an order is made for interim maintenance, and that would continue to operate till the application under Section 125 (4) is decided conclusively. This is in view of the beneficent nature of the provision. This question is accordingly decided. Consequently, the matter stands remanded to the Trial Court to make a decision on the merits since they had in this instance dismissed the application on the threshold. However, the matter does not end there.

PRIVATE INVESTIGATORS: AN AREA SANS REGULATION

21. On the record of this case, the appellant has placed a large number of photographs allegedly of Respondent no. 2 pursuing a relationship outside of marriage. The manner of the photographs leads us to believe that the same may have been procured through private investigators/detectives. What furthers this belief is that the appellant states to have ‘received’ these photographs after a particular date when an application was filed. The implication is that they have been received from a third party. A question arose as to the value of these pictures/videos since there is a statement in the file that approximately 92 videos along with 237 photographs have been furnished before the court below. Who took these pictures? Did they have any authorization to do so? What is the procedure for storing these pictures once taken? Whether these pictures sought to be adduced as evidence are in fact genuine pictures or are doctored using technological advancements; do they present an accurate picture or have they been morphed to suit the narrative sought to be built by the parties? What are the implications for the right of privacy of individuals, protection of their personal data, etc.? Obviously, these are concerns that need to be addressed. It appears, though, that there is no body existing currently that could undertake these issues.

If such collection of evidence is a reality, there also has to be some limitation to what these individuals can do in pursuit of their profession, some protections for them against allegations such as 354C IPC (voyeurism) and regulation of the data/photographs procured by the investigator. There has to be a mechanism in place to deal with the evolving methods of evidence collection. Verification within the meaning of Section 65B of the Evidence Act, 1872 or its equivalent in the BSA, 2023, is not the only issue. Checks and measures are perhaps required, drawn from the areas of the law, law enforcement, privacy experts, etc., that can deal with issues arising out of such endeavours, including acting as a grievance redressal forum for any individual who may be aggrieved by the actions of the private investigator having overstepped professional bounds and gone into violating the rights of the individual.

22. We notice that in 2007 a bill was introduced in the Rajya Sabha (Upper

House) of the Indian Parliament titled The Private Detective Agencies

(Regulation) Bill, 2007, which contained 36 sections and provided for the

Constitution of a Central Board and State Boards, a list of requirements to be

fulfilled for a license, cancellation, suspension of such licenses, maintenance of

records, express bar on investigations falling squarely within the domain of

statutory/regulatory authorities etc. A perusal of the Statement of Objects and

Reasons appended to the Bill reveals that the need to bring a bill in this regard

arose from the perspective of business since there was an increasing reliance on

private investigators to gather information. While that may be true, we believe

that regulation and accountability are equally important in the sphere of private

investigation.

While we recognize its growing importance and also the fact that it touches

various different aspects of law, as far back as 2000 it was observed by a Bench

of three Judges in Navinchandra N. Majithia v. State of Meghalaya20, as

follows:

“16. The Code does not recognise private investigating agency. If any person is interested in hiring any such private agency, he may do so at his own risk and cost, but such investigation would not be regarded as investigation made under law. Any evidence collected in such private investigation and any conclusion reached by such investigators cannot be presented by Public Prosecutor in any trial. Of course it may be possible for the defence to present such evidence. In this context, we may refer to a recent decision of this Court R. Sarala v. T.S. Velu [(2000) 4 SCC 459 :

2000 SCC (Cri) 823]. This Court said that even a Public Prosecutor cannot be officially involved during the stage of investigation. The following observations made by this Court in the said decision will be

20 (2000) 8 SCC 323 useful: (SCC p. 461, para 2) “2. Investigation and prosecution are two different facets in the administration of criminal justice. The role of a Public Prosecutor is inside the court, whereas investigation is outside the court. Normally the role of a Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation. Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage.

Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek the opinion of a Public Prosecutor under the orders of the court.”

On the aspect of admissibility of the evidence, if we for a moment keep aside the

non-recognition, then the three-fold- test as laid down in R.M. Malkani v. State

of Maharashtra21, which, while being concerned with the admissibility of a tape-

recorded conversation, held:

“23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. ...” (emphasis supplied)

This was recently referred to in Naresh Kumar Garg (Dr.) v. State of Haryana22,

‘Identification of the voice’ in current terms can be read as verifying the source

of the information or in this case, photographs/videos.

When dealing with this nature of evidence, it needs to be examined at the anvil of

Section 65-B of the Indian Evidence Act 1872. A three-judge bench in Arjun

21 (1973) 1 SCC 471 22 2026 SCC OnLine SC 295 Panditrao Khotkar v. Kailash Kushanrao Gorantyal23, explained the position as

thus:

V. Ramasubraminan J:

“84. But Section 65-B(1) starts with a non obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65-A and 65-B, if read together, mix up both proof and admissibility, but not talk about relevancy. Section 65-A refers to the procedure prescribed in Section 65-B, for the purpose of proving the contents of electronic records, but Section 65-B speaks entirely about the preconditions for admissibility. As a result, Section 65-B places admissibility as the first or the outermost checkpost, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled.

85. The placement by Section 65-B, of admissibility as the first or the border checkpost, coupled with the fact that a number of “computer systems” [as defined in Section 2(l) of the Information Technology Act, 2000] owned by different individuals, may get involved in the production of an electronic record, with the “originator” [as defined in Section 2(za) of the Information Technology Act, 2000] being different from the recipients or the sharers, has created lot of acrimony behind Section 65-B, which is evident from the judicial opinion swinging like a pendulum.” RF Nariman J:

“61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , and incorrectly “clarified” in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 :

(2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] . Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] , which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.”

23 (2020) 7 SCC 1 For the aspect of accuracy too, the certificate under section 65-B IEA could

perhaps go a long way.

23. In light of the questions posed by us above, the need to develop our

mechanism for dealing with these scenarios cannot be underscored enough. The

legislature would obviously need to undertake its own examination of all relevant

issues and frame rules/regulations in accordance with the prevalent norms and

conditions, but can also make reference to other jurisdictions where laws of

similar nature exist, for example, the State of Queensland in Australia, the

Province of Ontario and Canada, the Netherlands, Singapore, etc.

24. In view of the above discussion, on the aspect of private investigation, we

direct that a copy of this judgment be sent to the Secretary, Ministry of Law and

Justice, Government of India, and also the Chairman, Law Commission of India

to take a view, as may be appropriate in the matter.

The impugned judgment and order of the High Court dated 04.02.2025 is

hereby set aside. The matter is remanded to the Trial Court in the above terms.

Appeal is allowed. Pending application(s), if any, shall stand disposed of.

………….……..……………..J. (SANJAY KAROL)

……….………..……………..J. (VIPUL M. PANCHOLI)

New Delhi July 31, 2026