It is said that law keeps evolving, it keeps growing and developing with time. The said change or evolution is not only required to meet out the changes in society but also to technology. It tries to meet out new challenges thrown to it by changing itself either by interference of judiciary wherein new interpretation is provided to the text or by amendment of the text itself. The Evidence Act has been enacted in 1872 and it classified evidence (Interpretation clause: Section 31) into “oral” and “documentary” evidence and the same were to be proved by way of primary or secondary evidence. The lawyers and Judges in all these decades have tried to fit in the evidence in these two categories and have tried to prove the same as primary or secondary evidence, as the case may be. However, with technological advances and use of the same in our day-to-day life the need was felt by the legislature to regulate the law to meet out new challenges and thus the Information Technology (IT) Act, 2000 was enacted by Parliament, and in one of the rare occasions when one law brought amendment in various other laws. The IT Act vide Sections 91[1], 92[2], 93[3] and 94[4] brought in substantial change with regard to the electronic evidence/records in the Penal Code, 1860[5], the Evidence Act, 1872[6], the Bankers’ Books Evidence Act, 1891[7] and the Reserve Bank of India Act, 1934[8], respectively.
In its Statement of Objects and Reasons, the IT Act provided that:
The law of evidence is traditionally based upon paper based records and oral testimony. Since electronic commerce eliminates the need for paper based transactions, hence to facilitate e-commerce, the need for legal changes have become an urgent necessity.[9]
However, in the last 2 decades after the enactment of the IT Act, the use of electronic transactions has gone way beyond the e-commerce and thus now the use of electronic evidences in trials have increased exponentially and thus with the same courts have been time and again required to interpret Section 65-B of the Evidence Act providing for “admissibility of electronic records”.
Sections 65-A[10] and 65-B[11] have been added in the Evidence Act by the IT Act, 2000 where Section 65-A provides that the “contents of electronic records may be proved in accordance with the provisions of Section 65- B”. Since Section 65-B of the Evidence Act provided for “admissibility of electronic evidence”, without the need to produce the original, only if the electronic record (being a document) is supported with a certificate under Section 65-B(4) of the Evidence Act thus an issue cropped up in State (NCT of Delhi) v. Navjot Sandhu[12], as to whether or not an electronic record could be admitted even if the same is not supported by a certificate under Section 65-B(4). However, while dealing with the said question the Court held:
- … there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.
Thus, post Navjot Sandhu judgment[13] (Parliament attack case) the issue with regard to admissibility of electronic record got relaxed wherein the parties had an option either to bring the original record to the court and get it proved as primary evidence or to get a copy of original record proved by accompanying the same with a certificate under Section 65- B(4) of the Evidence Act or to prove the same as secondary evidence under Sections 63[14] and 65[15] of the Evidence Act. However, later, a three-Judge Bench of the Supreme Court in Anvar P.V. v. P.K. Basheer[16], overruled the law laid down by Navjot Sandhu case[17] and held that Section 65-B of the Evidence Act is a “complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield”. The Supreme Court held in Anvar P.V.[18] that the electronic record produced in evidence has to be accompanied with a certificate issued under Section 65-B of the Evidence Act to be admissible in law. However, it reiterated that there would be no need of producing certificate under Section 65-B if the original is being produced.
Although, in Anvar P.V.[19] the Supreme Court expressly overruled the law laid down by Navjot Sandhu case[20] that electronic record could be proved by way of secondary evidence as provided under Sections 63 and 65 of the Evidence Act but it left certain grey areas which needed answers.
The prominent one being that when would be the certificate under Section 65-B of the Evidence Act be required to be taken and produced in evidence and second question being that what would happen to the cases or trials where electronic record has been proved in terms of Navjot Sandhu case[21] in trial without any certificate under Section 65-B and the question with regard to it is raised in appeal.
Ambiguity in Law
The Supreme Court in Anvar P.V.[22] at two different places (at paras 16 and 22 of the judgment) recorded contradictory position, at one place it recorded that such certificate shall be given when the electronic record “is produced in evidence” whereas at the other place it recorded that the certificate shall be “obtained at the time of taking the document”, this has lead to confusion and the various High Courts have interpreted it on different occasions.
The Rajasthan High Court in Paras Jain v. State of Rajasthan[23], examined the issue as to whether a “contemporaneous certificate” under Section 65-B would be required for admissibility of a CD in evidence. The High Court while examining the issue and referring to Anvar P.V.[24] opined that such certificate is not required to be filed with charge-sheet and the only requirement is to complete the procedure (of procurement and submission of certificate) before the admissibility of evidence is considered by the court. For arriving at such conclusion the court also made reference to various provisions of the Criminal Procedure Code which permit the production of a documentary evidence which has not been submitted with the charge-sheet, accordingly the High Court held that there is no requirement of procurement of a certificate under Section 65-B of the Evidence Act at the time of taking the electronic record and the same could be procured later and submitted at the time of production of such document in evidence.
The same issue was considered by the Delhi High Court as well in Kundan Singh v. State[25], where the Division Bench of the High Court examined the same issue as to whether certificate under Section 65-B must be issued simultaneously with the production of the computer output or could it be issued and tendered when such document is admitted in evidence. The Division Bench while discussing the observation of the Supreme Court in Anvar P.V.[26] held that ratio of Anvar P.V.[27] does not require a simultaneous or contemporaneous certificate to be issued. The High Court clarified that admissibility and authenticity are two different things and Section 65-B is only with regard to admissibility and not about authenticity.
In Avadut Waman Kushe v. State of Maharashtra[28], the High Court of Bombay examined the sole question that whether certificate under Section 65-B(4) must necessarily be filed simultaneous with the electronic record or whether it can be filed at any subsequent stage of proceedings. While examining the said issue the High Court independently observed that Section 65-B does not specify the stage of production of certificate. It further opined that the “stage” at which certificate would be required to be submitted would be the stage when the document is “tendered in evidence for being considered its admissibility. This definitely cannot be the stage of filing of the charge-sheet” or the preliminary stage of proceedings.
The realisation of grey area left in the judgment of Anvar P.V.[29] has not only been felt by the various High Courts but also by the author of Anvar P.V. judgment[30], Kurian Joseph, J. himself, who wrote an article titled as “Admissibility of Electronic Evidence”[31], wherein he has observed that the judgment in Anvar P.V. [32] “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 stage, during the trial”. However, after discussing the judgment of the Rajasthan High Court (Paras Jains case[33]) and the Delhi High Court’s judgment in Kundan Singh v. State[34], Kurian Joseph, J. opined that the correct position of law on the point would be the one held in Anvar P.V. case[35] and clarified by the said judgments of the Rajasthan High Court and the Delhi High Court.
However, despite the similar interpretation provided by the High Courts of Rajasthan, Delhi and Bombay to the judgment of Anvar P.V.[36] and also the article written by the author of Anvar P.V. judgment[37] acknowledging the said interpretation provided by the said High Courts, the absence of an authoritative pronouncement by the Supreme Court on the said point and the doubt left by Anvar P.V. case[38], the High Court of M.P. provided an opposite interpretation and held in Kamal Patel v. Ram Kishore Dogne[39], that:
- 12. … in order to ensure the source and authenticity of the electronic record, a contemporaneous certificate issued at the time of each transfer in terms of Section 65-B(4) of the Evidence Act, would be required because the Supreme Court has specifically held that in case of CD, VCD, chip etc, the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record, is
(emphasis supplied)
Thus, in absence of an authoritative pronouncement by the Supreme Court on the issue, the High Courts have interpreted Anvar P.V.[40] differently. However, in addition to this uncertainty, the Division Bench of the Supreme Court in Sonu v. State of Haryana[41] added more to the confusion by doubting the general law of applicability of judgments retrospectively unless the same is specifically mentioned otherwise in the said judgment. The Division Bench observed that:
- This Court did not apply the principle of prospective overruling in Anvar case[42]. The dilemma is whether we This Court in K. Madhava Reddy v. State of A.P.[43], held that an earlier judgment would be prospective taking note of ramifications of its retrospective operation. If the judgment in Anvar[44] is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar case[45]was decided by a three-Judge Bench, propriety demands that we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a three-Judge Bench.
Thus, considering judicial propriety the Division Bench stopped just before holding that the application of Anvar P.V. judgment[46] only prospectively, and the issue still awaits an authoritative pronouncement/clarification from the Supreme Court.
In most of the cases it has been seen that the strict compliance of requirement for a certificate to be considered as a certificate under Section 65-B(4) of the Evidence Act (as made mandatory by Anvar P.V. judgment[47]) was being found difficult for the parties to meet because in most of the cases such certificates are procured from a third party and in those cases the litigant is not in position to dictate the language of certificate, this has lead to a bona fide litigant suffering at many occasions. The Division Bench of the Supreme Court, possibly being moved by the suffering of such litigants, deviated from the ratio of the three-Judge Bench judgment of Anvar P.V. case[48] in Shafhi Mohammad v. State of H.P.[49] and by doing so it contributed to the confusion in the legal proposition on admissibility of electronic evidence. In Shafhi Mohammad[50] the Supreme Court observed that “Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.” It further held that “In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded.”
Since the said finding of the Division Bench was directly in contravention of the finding recorded by the three-Judge Bench of Supreme Court in Anvar P.V[51].(para 20) where the Supreme Court has specifically held for Section 65-B that it “is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield”. Thus, looking into contradictory finding given by a Division Bench of Supreme Court the pronouncement of Division Bench of the Supreme Court in Shafhi Mohammad[52] was referred to the larger Bench for reconsideration in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[53].
Clarification as Provided by the Supreme Court[54]
a. Shafhi Mohammad[55]overruled (being per incuriam), certificate under Section 65-B held mandatory.—As at the time of reference no specific question was framed by the Division Bench while referring the issue to larger Bench and also considering the fact that there were too many grey areas left behind in Anvar V. case[56] the three-Judge Bench of the Supreme Court considering the reference made to it, took an opportunity to provide clarifications on certain issues while agreeing with the ratio of Anvar P.V.[57] viz. Section 65-B of the Evidence Act is a complete code in itself and thus setting aside the judgment of Shafhi Mohammad[58] and holding it as per incuriam.
b. Reference to Information Technology Act, —The three-Judge Bench of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[59] agreed with the law laid down in Anvar P.V.[60] but gave certain clarifications to the same. While in Anvar P.V.[61] although the Supreme Court was dealing with electronic records and evidences still no reference was given to the definitions of the same. However in Arjun Panditrao Khotkar[62] the Supreme Court made it clear that the definitions of the terms like “electronic records”, “computer”, “computer network”, “data”, etc. has to be taken from the Information Technology Act, 2000 and the same would not be as being understood by any layman.
c. Who can provide the certificate under Section 65-B.—In Arjun Panditrao[63] the Supreme Court held that the certificate under Section 65-B is a mandatory document but it could be provided by anyone out of several persons who occupy a “responsible official position” in relation to the operation of the relevant device, as also the person who may otherwise be in the “management of relevant activities”. It also provided that the certificate has to be given only stating that it is as per the “best of his knowledge and belief”, however it was clarified that it has to be either knowledge or belief as it cannot be This was further provided that in cases where the certificate is not filed or is defective than the court concerned may call for the appropriate certificate.
d. Conditions to be satisfied in —The conditions mentioned in Section 65-B(4) as being optional (with the use of expression “any” in the statute), has been read by the Supreme Court as being cumulative in nature and thus “all” the said conditions are required to be fulfilled in the certificate so issued.
e. Stage at which certificate could be filed and it need not be contemporaneously issued.—The 3-Judge Bench of the Supreme Court by putting its stamp of approval on the judgments of Paras Jain[64] (Rajasthan High Court) and that of Kundan Singh[65] (Delhi High Court) clarified the confusion with regard to the stage at which certificate is to be produced and also about the cases where certificate is issued at a later date and electronic record is issued on a prior date. It has been held by the Supreme Court that:
59. … So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted, and relied upon in [66]
The clarification about the fact that both certificate as well electronic record could be from different date and time is clear from the fact that the Supreme Court approved the judgments of High Courts which held the same, coupled with the fact that the Supreme Court itself observed that “[c]onsidering that such certificate may also be given long after the electronic record has actually been produced by the computer….” goes on to clarify that the certificate need not be contemporaneous to the transfer of date or creation or production of the electronic record in evidence.
f. Section 65-B a complete code on itself, non-application of Sections 62 to 65 in cases relating to electronic evidence.—Further, the 3-Judge Bench of the Supreme Court clarified that when Anvar V[67] held that Section 65-B is complete code in itself, it basically goes on to show that not only the principles of “secondary evidence” would be applicable in such cases but also the concept of “primary evidence” as is understood in the Evidence Act would also be not applicable and accordingly the Supreme Court observed that “Sections 62 to 65 being irrelevant” for the admissibility and proof of electronic record and thus it directed that the phrase “under Section 62 of the Evidence Act” be considered to have been deleted from para 24 of Anvar P.V. judgment[68]. Although the court did use the terms “primary” and “secondary” to explain the concept of “original” and “document” with certificate under Section 65-B for the purpose of electronic evidence but it has been made clear by the Court that Section 65-B is a complete code in itself and the concept of primary and secondary evidence (as provided from Sections 62 to 65 of the Evidence Act) would have no application in cases of electronic evidences.
g. Oral evidence cannot be a substitute to the certificate under Section 65-B.—The Supreme Court while overruling the judgment of the Madras High Court in Ramajayam v. Inspector of Police[69] held that “certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record”, however it provided that:
52. … in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person …and require that such certificate be given by such person/persons.[70]
The Supreme Court though further clarified that “[t]his, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned”. Thus, the Supreme Court directed to ensure that a vigilant litigant is provided proper help by the trial court in securing the certificate or an evidence is not discarded because of reasons beyond the control of litigant while making it sure that the requirement of Section 65-B is adhered to in letter and in spirit.
h. Other general —To ensure that the accused/other party gets sufficient opportunity to challenge the genuineness of the electronic record (be it CDR or any other record), all cellular companies and internet service providers have been directed to maintain CDRs and other relevant records for the period concerned (in tune with Section 39[71] of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation. The Court further directed that the authorities concerned should examine the Draft Rules for Reception, Retrieval, Authentication and Preservation of Electronic Records and the report suggesting comprehensive guidelines, and their adoption in courts, across several categories of proceedings (as prepared by a Judges’ Committee), with an object to give them statutory force. Thus, although the 3-Judge Bench in Arjun Panditrao Khotkar case[72], was only answering the reference made to it, however it ended up providing clarity on the issue of admissibility of electronic evidence and the procedure which is required to be followed in such cases. It goes a long way to clarify the grey areas present in the law. The law on admissibility of evidence might need to evolve more in future, but as of now the path has been provided by the Supreme Court for other courts to follow.
* Advocate on Record, Supreme Court of India.
** Advocate, High Court of Madhya Pradesh at Jabalpur.
1 http://www.scconline.com/DocumentLink/U7XDph8q.
[1] http://www.scconline.com/DocumentLink/4s23VV20.
[2] http://www.scconline.com/DocumentLink/5GGOtaCT.
[3] http://www.scconline.com/DocumentLink/ARIrZy0v.
[4] http://www.scconline.com/DocumentLink/5Ob6WlcP.
[5] http://www.scconline.com/DocumentLink/wNz74jV9, http://www.scconline.com/DocumentLink/hF8R4TLX.
[6] http://www.scconline.com/DocumentLink/CmD6h6Ep.
[7] http://www.scconline.com/DocumentLink/21qgXyb2.
[8] http://www.scconline.com/DocumentLink/2Qrc25Io.
[10] http://www.scconline.com/DocumentLink/2DzzZZ6F.
[11] http://www.scconline.com/DocumentLink/dQ7rc5Jn.
[12] (2005) 11 SCC 600, 714.
[14] http://www.scconline.com/DocumentLink/jKNlwH2s.
[15] http://www.scconline.com/DocumentLink/agf32S6C.
[17] Supra Note 14.
[18] Supra Note 17.
[19] Ibid.
[20] Supra Note 14.
[21] Ibid.
[22] Supra Note 17.
[23] 2015 SCC Online Raj 8331.
[24] Supra Note 17.
[25] 2015 SCC OnLine Del 13647.
[26] Supra Note 17.
[27] Ibid.
[29] Supra Note 17.
[30] Ibid.
[32] Supra Note 17.
[33] Supra Note 24.
[34] Supra Note 26.
[35] Supra Note 17.
[36] Ibid.
[37] Supra Note 32.
[38] Supra Note 17.
[40] Supra Note 17.
[41] (2017) 8 SCC 570, 589.
[42] Supra Note 17.
[44] Supra Note 17.
[45] Ibid.
[46] Ibid.
[47] Ibid.
[48] Ibid.
[50] Ibid.
[51] Supra Note 17.
[52] Supra Note 50.
[54] Ibid.
[55] Supra Note 50.
[56] Supra Note 17.
[57] Ibid.
[58] Supra Note 50.
[59] Supra Note 54.
[60] Supra Note 17.
[61] Ibid.
[62] Supra Note 54.
[63] Ibid.
[64] Supra Note 24.
[65] Supra Note 26.
[66] Supra Note 54, p.55.
[67] Supra Note 17.
[68] Ibid.
[70] Supra Note 54, p. 50.
[71] http://www.scconline.com/DocumentLink/lT5UPCaK.
[72] Supra Note 54.
