Case BriefsSupreme Court

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]

Case BriefsHigh Courts

Orissa High Court: A Full Bench of K.S. Jhaveri, CJ and A.K Rath and Biswajit Mohanty, JJ. entertained a writ petition, which involved a detailed question of law which was, “Whether the change of the name of parents of candidate who had already appeared at the High School Certificate Examination and obtained the Board Certificate incorporating the names was permissible on the basis of a correction in the school record made subsequent to that date?”

Amicus Curiae, Gautam Mishra, placed reliance on Ranjit Kumar Mallick v. Director of Secondary Education, 1996 SCC OnLine Ori 289, where the Division Bench of same High Court directed the Board to correct father’s name of the petitioner in the certificate of the HSC Examination issued by the Board in favour of the petitioner. It was submitted that after Ranjit Kumar Mallick, the Board had issued a form for correction of original pass certificate. It was highlighted that, future of a student will be bleak in the event the mistake creeps in the certificate; he cannot be compelled to institute the suit, which is not an efficacious remedy. The Board has ancillary power to correct the father’s/mother’s name in the certificate. Further he relied upon the judgment in State of M.P. v. Pradeep Kumar, (2000) 7 CC 372, where the Supreme Court noted that, where a student’s career may be affected and a minor change may not affect the property rights of any of the parties, particularly when a change is sought for pursuing academic goals, relegating a party to the common law forum may not be an alternative efficacious remedy. In appropriate cases, the claim of the student may be entertained in a writ petition in case the Board/Directorate refuses to correct a genuine mistake. But then, when such claims are for the purpose of establishing property rights, the appropriate remedy may be the common law forum. Each case has to be examined keeping in mind the background facts of that particular case.

S.S. Rao, learned counsel for the State argued that the Regulation of the Board, has been framed under Section 21 of the Orissa Secondary Education Act, 1953. There was no provision in the Board’s Regulation for correction of names of candidate’s parents, who had appeared in the HSC Exam and had been issued with the certificate. In the absence of any such provision, change of name or surname of parents in whatever circumstances, except for clerical or printing mistake was not permissible in law and as such, no direction can be given to the Board to make such changes. He further submitted that any amendment can only be allowed by the approval of State. Correction of a mistake, clerical or otherwise cannot be equated with the change of father’s name, which requires factual adjudication hence, will be out of the purview of the Board. He further placed reliance on Rai Brij Raj Krishna v. S.K. Shaw, AIR 1951 SC 115, where the Supreme Court stated that by change of father’s/mother’s name several legal complications involving property rights, adoptions, securing of some benefit by changing of caste, overcoming the rigors of election law, which restricts number of children to contest may arise. It is open to the aggrieved party to approach the common law forum.

The Court observed that the website of the Board has a form which allows for correction of father’s name. Hence, the Board cannot take a stand that in the absence of regulation governing the field no correction can be made. It further directed that, application for correction of names shall be made within three years of the passing of HSC Exam so that authorities are not put to any difficulty. The application has to be made through the concerned Headmaster of the High School. The Court rejected opinion and submissions of the respondent with regard to correction of the records of the school in respect of parents’ name and was applicable when a student continues in the school and was not sent up for filling up the forms to appear the Board examination and not thereafter, as allowing this at a later stage may encourage unnecessary complication in cases like adoption.

It was held, “In view of the discussions made in the preceding paragraphs, we are in consensus ad idem that the ratio laid down in Ranjit Kumar Mallick is the correct enunciation of law. We do not find any valid reason to look into the matter afresh. The reference is answered accordingly.”[Satyasiva Sundar Nayak v. Board of Secondary Education, 2019 SCC OnLine Ori 193, decided on 13-05-2019]