SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

Supreme Court: In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

The Court was hearing the reference from the July 26, 2019 order where, after quoting Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was found that a Division Bench judgment in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 may need reconsideration by a Bench of a larger strength. The Division bench, in the Shafhi Mohammad judgment, had “clarified” that the requirement of a certificate under Section 64B(4), being procedural, can be relaxed by the Court wherever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device, as a result of which such party would not be in a position to secure the requisite certificate.

The 3-judge bench in the present case, holding the Shafhi Mohammad judgment to be incorrect said,

“the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it.”

Clarification on Anvar P.V. case:

“… if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65-B of the Evidence Act.”

The Court also clarified the confusion over the aforementioned sentence in the Anvar P.V. Case and held that the last sentence in Anvar P.V. case which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is to be read without the words “under Section 62 of the Evidence Act,…”

It said,

The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).”

Stage of furnishing the certificate to the Court:

The Court also took note of the fact that Section 65B does not speak of the stage at which such certificate must be furnished to the Court, and said that in cases where such certificate could be procured by the person seeking to rely upon an electronic record, such certificate must accompany the electronic record when the same is produced in evidence. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case.

“When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.”

General Directions to Cellular companies and internet service providers:

The bench issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act.

The Court directed that the aforementioned general directions shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

Framing of rules and directions under Section 67C of Informational Technology Act:

The Court directed that appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571  , decided on 14.07.2020]

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