electronic evidence

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Rouse Avenue District Court: In the case of defamation filed in the year 2013 by Sh. Surender Kumar Sharma, Advocate, Shahdara Bar Association (Complainant) against three persons i.e., Sh. Arvind Kejriwal, presently the Chief Minister of Delhi and convener/founder of Aam Aadmi Party (Accused 1), Sh. Manish Sisodia, presently Deputy Chief Minister of Delhi and the then Member of Political Affairs Committee of Aam Aadmi Party (Accused 2) and Sh. Yogender Yadav, the then Member of Political Affairs Committee of Aam Aadmi Party (Accused 3), Vidhi Gupta Anand, J. acquitted the accused person, despite examination of plethora of witnesses and bringing several documents on record, Complainant failed to prove his case beyond all reasonable doubts as required in law.

It has been alleged in the instant case that in June 2013, accused 1 was impressed by the social services provided by the Complainant and granted him ticket of MLA from Shahdara Constituency which has been published in several esteemed newspapers of the country. The grievances of the Complainant with respect to his alleged defamation came to the fore on 14-10-2013 when he read some newspaper articles in the leading Hindi and English newspapers pertaining to his replacement as the candidate of seat of MLA from Shahdara Constituency on the ticket of Aam Aadmi Party having headlines AAP replaces candidate with ‘criminal’ record. Allegedly, similar derogatory and defamatory language has also been used and got published by the Accused persons in other daily leading Newspapers i.e., Hindustan Times (Hindi) and Rastriya Shahara on 14-10-2013.

The complainant alleges that the aforesaid derogatory and defamatory words have lowered his image and reputation at the Bar as well as in the eyes of the general public and society at large and caused mental trauma to the Complainant and his family members and also affected his business of Advocacy as well as that of his nephew Yogesh Kumar Gaur. The complainant has stated that most of their litigants stopped coming to them because of their defamation. Thus, Complainant had prayed for taking lawful action against the Accused persons for offences U/s 120-B/420/499/500/34 Penal Code(‘IPC’).

Law of Defamation in India

The offence of defamation is defined u/s 499 of the IPC and punishable under Section 500 IPC. Placing reliance on Subramanian Swamy v. Union of India, (2016) 7 SCC 221, the Court noted that it is manifest that mens rea i.e., intention of defame is indispensable to establish the offence of defamation. There must be an intention on the part of the Accused to cause harm to the reputation of the complainant. The ingredients of the offence are as follows:

  1. Imputation made by the Accused: In the case at hand, it has been denied by the Accused persons that they gave any press-release on the basis of which the alleged defamatory news articles were published. Hence, it becomes a question of determination of this court as to whether the alleged defamatory news articles were published at the behest of the Accused persons or not.

  2. Statement/Imputation must be published: In the case at hand, the entire basis of the alleged defamation is several news-articles published in leading newspapers on 14-10-2013. Hence, as regards publication of the statement/imputation, there remains no scope of doubt as undoubtedly, newspaper is a document in public domain which can be accessed by any person and rather the entire purpose of publication is such that the information reaches as many people as possible.

  3. Intention to cause harm to the reputation of the Complainant: The Court noted that the parameter to judge as to whether a particular statement or imputation has harmed the reputation of a person or not, as encoded in Explanation — 4 to Section 499 IPC, is whether the imputation, directly or indirectly, in the estimation of others, lowers the character or credit of that person or causes it to be believed that the person is in a loathsome or disgraceful state. Thus, in order to prove that the injury was caused to his reputation, it is essential for the Complainant to prove that in the eyes of a third person, his character and credentials were questioned.

Appreciation of Evidence

Issue 1: Whether the alleged defamatory news articles were published at behest of accused persons or not?

The source of publication of alleged defamation is an e-mail sent by one Aswathi Muralidharan on 13-10-2013, which has been testified by different witnesses. According to her testimony, she denied being the Media Manager of the Aam Aadmi Party meaning thereby, that Aswathi Muralidharan has cut-off the chain linking the Accused persons to the alleged defamatory news articles. The ideal flow of information would have been from the Political Affairs Committee of the Aam Aadmi Party to Aswathi Muralidharan and from her to the Media Channels.

Thus, the source of the news articles which was determined after going through testimonies of several witnesses i.e., the e-mail from Aswathi Muralidharan, could not lend much support to the Complainant’s case so as to attribute the actus reus to the Accused persons.

Admissibility of Electronic Records

Placing reliance on Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the Court noted that any document on a computer device, unless produced in original, is admissible in the form of secondary evidence only when supported by a mandatory certificate as required u/s 65B (4) of Evidence Act.

The Court noted in light of the instant case that no certificate at all has been produced by any witness from other news publications i.e., Times of India and Rashtriya Sahara, with respect to the e-mails received by them. No primary evidence has been produced during the trial with respect to the receipt of the e-mail by Aswathi Muralidharan, hence, in view of the law elucidated above, filing of a certificate u/s 65B (4) of the Evidence Act was mandatory in this case. Thus, the admissibility of the e-mails relied upon by the Times of India and Rashtriya Sahara becomes questionable.

Thus, the Court observed that as is manifest from the essentials quoted above, merely stating that the electronic record is generated from the computer and printer maintained in the office in regular course of business shall not suffice and specifications of the devices used to generate the copy of the electronic record has also to be mentioned in the certificate u/s 65B (4) of the Indian Evidence Act. Hence, the source of news articles in question are inadmissible in evidence.

The Court remarked despite scrutiny of the entire evidence on record, it could not be established that the news publication was made by the Accused persons. The most essential ingredient of the offence i.e., Actus Reus could not be established on the part of the Accused persons. Thus, this Court shall not get into the question as to whether the alleged news articles were defamatory or not and straight away move to the decision.

The Court opined that in order to constitute any offence two essential ingredients are — actus reus i.e., act or omission on the part of the Accused to constitute physical element of crime and mens rea i.e., guilty intention on the part of the accused. Particularly in regard to the offence of defamation, the primary ingredient, that is actus reus, is making of a statement or imputation by words or signs or visible representations by the Accused and all other ingredients, viz. publication and intention to defame, come thereafter. The case of the complainant becomes weak on the very first aspect itself. When the Complainant has been unable to prove that it was the Accused persons who gave the alleged defamatory press release/statements, no question arises as to whether those statements were defamatory or not. In other words, where the foundation of the complaint case itself fails, the superstructure built on the same is bound to fail.

The Court thus held that the complainant has failed to attach culpability to the accused persons despite several efforts. In these circumstances, all the accused persons namely Arvind Kejriwal, Manish Sisodia and Yogender Yadav are held not guilty and acquitted for the charge leveled against them under section 500 IPC.

[Surender Kumar Sharma v. Arvind Kejriwal, 2022 SCC OnLine Dis Crt (Del) 32, decided on 20-08-2022]

*Arunima Bose, Editorial Assistant has put this report together.

Op EdsOP. ED.

Introduction

Section 65-B of the Evidence Act, 1872[1] (Act), dealing with the admissibility of electronic evidence, has emerged as one of the most controversial provisions under the Act over the last two decades. Inserted vide an amendment in the year 2000, the provision was introduced keeping concerns about the authenticity of electronic records at heart, while ensuring the overall adaptability to the use of electronic records in courtrooms.[2] Over the years, Courts in India have grappled with issues arising from the interpretation of Section 65-B, often oscillating between contrarian positions that have had a far-ranging impact on the inclusion of significant information in trials.

On 14-7-2020, a three Justices’ Bench of the Supreme Court of India (Supreme Court) delivered its decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal,[3] considering the interpretation of Section 65-B yet again. The factual background of the case relates to the election of a successful candidate (appellant) to a State Legislative Assembly which had been challenged by a defeated candidate and an elector in the constituency (respondents). The challenge was levelled on the basis that the nomination papers of the appellant had been improperly accepted by the Returning Officer (RO) concerned of the Election Commission after the cut-off time on the stipulated date i.e., after 3.00 p.m. on 27-9-2014.

To support this contention, the respondents had sought to rely on video-camera recordings from arrangements made within and outside the RO’s office. Upon the High Court’s direction for production of the original video recordings of the two days stipulated for filing nomination forms (September 26-27, 2014), the Election Commission had produced Video Compact Disks (VCDs) before the Court. The recordings in these VCDs clearly showed that the nomination papers had been filed after the cut-off time. Notably, however, the RO’s office had not furnished a certificate under Section 65-B(4) of the Act [65-B(4) certificate] along with the VCDs, and had refused to do so even after a request had been made by the respondents.

The main question before the High Court was whether the VCDs could be admitted in evidence in the absence of such a certificate. Interestingly, during cross-examination, a representative from the RO’s office had admitted that there had been no complaint as to the working of the video cameras installed there. She had further admitted that the cameras were regularly used to record incidents at the RO’s office and that a VCD of the recordings was collected on a daily basis. The VCDs were even entered as part of the record of the Election Commission. In light of this evidence obtained during cross-examination, the High Court observed that the conditions stipulated in the Act as regards the reliability of electronic evidence had been fulfilled. It noted that oral evidence of this nature was not barred by Section 65-B and that a requirement of filing a 65-B(4) certificate had been substantially complied with.[4]

In appeal before the Supreme Court, the main argument was that according to a prior decision of three Justices in Anvar P.V. v. P.K. Basheer,[5] a written and signed 65-B(4) certificate was mandatory for the admissibility of electronic records and no oral evidence could be adduced in support thereof. Thus, in the absence of such a certificate, it was argued that the VCDs could not have been admitted in evidence. A two Justices’ Bench took note of Anvar[6] as also the decision in Shafhi Mohammad v. State of H.P.,[7] where another two Justices of the Supreme Court had held that the certificate requirement under Section 65-B(4) was not always mandatory, and could be relaxed in the interest of justice.[8] In view of an apparent conflict between the interpretation of Section 65-B by three Justices in Anvar[9], and that by two Justices in Shafhi[10], the issue was referred to be clarified by a three Justices’ Bench in Arjun Panditrao[11].

Three Justices of the Supreme Court upheld the decision in Anvar[12], holding that Section 65-A and Section 65-B fully govern the admissibility of electronic evidence under the Act, to the exclusion of the regular procedures provided in other parts of the Act. The observations in Shafhi[13] were declared per incuriam. It was held that a 65-B(4) certificate is mandatory in all cases where the original electronic record (as stored on a computer device) cannot be produced before the Court.

In this comment, we contend that in its decision in Arjun Panditrao[14], the Supreme Court has perpetuated the errors in Anvar[15] by holding that the production of a certificate under Section 65-B(4) is mandatory for the admissibility of electronic records contained in computer outputs. This approach is not only contrary to the text and structure of Section 65-B, but also the global practices on admissibility of electronic evidence, geared towards ensuring greater ease of admissibility.[16] While a concurring opinion in Arjun Panditrao[17] (penned by V. Ramasubramanian, J.) looks at these global best practices and suggests a reconsideration of Section 65-B, we argue that the Court’s reasoning and conclusion would have been enriched by drawing on comparative lessons, especially from the United Kingdom and Singapore, where legal provisions akin to the existing Section 65-B existed. In this light, it is also argued that the Court’s reiteration of the primary-secondary dichotomy in the context of electronic evidence may be dated and may have to be revisited in future.

The certificate under Section 65-B(4): A background

Under the scheme of the Act, electronic evidence is primarily governed by Sections 65-A[18] and 65-B. The purpose of Section 65-A is only to make a reference to Section 65-B.[19] Under Section 65-B(1), a deeming fiction is created whereby information contained in an electronic record when printed on paper or captured in media such as a CD or a USB drive is treated as a document and is admissible as evidence of the contents of the electronic record. Creating an exception to the best evidence rule, namely, when an original is available, no secondary evidence ought to be produced,[20] this was introduced with a view to facilitate the use of electronic evidence in proceedings.

However, at the same time, the deeming fiction is made subject to the fulfilment of certain conditions enlisted in sub-section (2)[21] to address widely accepted concerns about corruption and tampering of electronic evidence. While the fulfilment of these conditions is mandatory, sub-section (2) does not spell out how these conditions must be satisfied. In this regard, an avenue is found in Section 65-B(4) which allows the production of a certificate identifying the electronic record containing the statement and the manner in which it was produced; giving particulars of any device used in the production of an electronic record; or dealing with any of the matters mentioned in sub-section (2). It is provided that such a certificate which is signed by a responsible official person in relation to the operation of a device or management of the relevant activities shall be evidence of the material stated therein.

Thus, it appears that while introducing conditions that make genuineness of the electronic records relevant at the admission stage itself, the Act also makes provision for a way to prove these conditions by way of sub-section (4). Notably though, it is not stated that only a certificate of this type shall be evidence, nor is it stated that the conditions in sub-section (2) can be satisfied only through a certificate. In fact, in the absence of any provision in Section 65-B that indicates otherwise, it follows that the conditions enlisted in Section 65-B(2) can be proved by oral or documentary evidence, as per the general procedure prescribed under Sections 63[22] and 65 of the Act.[23] In our view, a holistic interpretation of Section 65-B leaves open the possibility for the use of evidence aliunde to meet the conditions in sub-section (2), especially since sub-section (2) does not give any guidance on how the conditions therein must be proved. Thus, a certificate doing “any” of the three things under sub-section (4) is provided as an option over and above oral and documentary evidence, to a party that wants to rely on electronic evidence.

This aspect of Section 65-B has been interpreted on more occasions than one by the Supreme Court. The first prominent case was State (NCT of Delhi) v. Navjot Sandhu,[24] where a two Justices’ Bench was called upon to consider whether printouts of call records could be adduced in evidence, without a certificate under Section 65-B(4). Recognising the constraints of producing information contained in call records stored in huge servers, the Court held that secondary evidence under Sections 63 and 65 of the Act could be produced for proving the contents of an electronic record. It observed that printouts of the call records taken from the computers/servers, which were certified by a responsible official of the service-providing company, could be led in evidence through a witness who identified the signatures of the certifying officer or otherwise spoke of the facts on the basis of her personal knowledge. Thus, a certificate under Section 65-B(4) was held to not be mandatory for producing electronic evidence.

However, this part of the decision in Navjot Sandhu[25] was overruled by three Justices in Anvar[26]. In this case, certain CDs that were used for recording speeches and announcements during an election were sought to be produced before the Court to challenge a candidate’s election. Since these CDs were not produced with Section 65-B(4) certificates, it was held that the electronic records contained in them could not be admitted, as the certificate was mandatory. It was also observed that Section 65-B is a complete code unto itself and therefore, evidence aliunde could not be used to prove the genuineness of electronic records.

Soon after Anvar[27] though, a three Justices’ decision in Tomaso Bruno v. State of U.P.[28] geared back towards the position in Navjot Sandhu[29], holding that secondary evidence pertaining to an electronic record could be led under the Act. However, this decision did not consider Anvar[30]. The view in Navjot Sandhu[31] also came to be reflected in the observations of two Justices in Sonu v. State of Haryana,[32] where a 65-B(4) certificate was noted as being only a “mode of proof”. This was closely followed by the decision in Shafhi[33] where an exception as to the applicability of Anvar[34] was carved to meet situations where a party does not have control over the device in which the original electronic evidence is stored. The Court held that the certificate requirement in Section 65-B(4) could be relaxed in such instances.

Mandating the certificate under Section 65-B(4) in Arjun Panditrao: A compounded error

In this conspectus, the interpretation of Section 65-B came up before the Court in Arjun Panditrao[35]. While the commentary on Section 65-B since Anvar[36] had delved deep into the text and judicial history of the provision, it appears that the three Justices deciding Arjun Panditrao[37] did not take the reference as an opportunity to do so. In fact, a close reading of the decision shows that the Court does not enter the thick of this controversy at all. It merely accepts the position in Anvar[38] that the certificate requirement under Section 65-B(4) is mandatory,[39] without assigning adequate reasons of its own for why it should be so. The Court does not examine the text or its underlying policy imperatives, which in fact indicate that the certificate requirement is only a sufficient, and not a necessary condition. As a consequence, no rationale for excluding oral or secondary evidence to meet the conditions in sub-section (2) is provided either.

Interestingly, when discussing the historical antecedents of Section 65-B, the Court takes note of the fact that the provision had been borrowed from Section 69 of the Police and Criminal Evidence Act, 1984[40] (PACE) in the United Kingdom. While the Court correctly observed that the extant law in the United Kingdom does not draw a distinction between electronic evidence and other evidence in terms of admissibility and reliability any longer,[41] it did not consider how Section 69 of the PACE had been interpreted previously by the House of Lords.

In Reg. v. Shepherd,[42]  the House of Lords was called upon to consider the admissibility of certain computer-generated till rolls which had been relied upon by the prosecution as evidence of theft from a departmental store. The defendant had argued that the till rolls could be admitted if and only if a certificate signed by a person occupying a responsible position in relation to the computer was produced. The House of Lords rejected this contention. It said that whilst a certificate could only be given by a person occupying a responsible position qua the computer, oral evidence could also be led if such a certificate was not available. The House of Lords further went on to say that the evidence as regards the operation of a computer would inevitably vary from case to case. It observed that expert evidence would rarely be needed, and in a vast majority of cases, the burden could be discharged by calling a witness familiar with the operation of the computer.

Thus, interpreting Section 65-B of the Act nearly three decades later, the Supreme Court ought to have considered the decision of the House of Lords. However, instead of relying on the oral evidence produced by the respondent to rule in favour of a substantial compliance with sub-section (2), the Court’s primary focus appears to be on the special nature of Section 65-B as a complete code on electronic evidence.

Contents of  certificate under Section 65-B(4): Caging the scope

As mentioned earlier, Section 65-B(4) allows a party to produce a certificate which avers to “any of the things” mentioned therein as proof of one or more of those things. These things could range from the identification of an electronic record to a narration of the working condition of the computer from which such record is produced. Notably, sub-section (4) uses the word “any” when listing the three “things”. It does not state that a certificate must do all the things.

In its decision in Arjun Panditrao[43], the Supreme Court has however observed that the phrase “any of the things” must be read as doing “all” of the things. For this, it relied on a prior decision holding that in certain contexts “any” can mean “all”.[44] In doing so, the Court followed the law laid down in Anvar[45]. However, as in Anvar[46], it did not consider the fact the certificate needs to be signed by a person “occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities”.[47] It needs to be borne in mind that such a person may not always be available with respect to all the “things” mentioned in sub-section (4).

To see why, consider the example of a whistleblower in a company who has copied information (forged account statements) onto a pen drive, or a forensic expert working with the police who has transferred data (taped confession) to a USB drive. While the whistleblower or the forensic expert may be able to produce a certificate narrating the particulars of the computer from which data was copied onto the pen drive/USB stick, she may not be able to testify as to how the electronic record (.xml/.mp4 file) containing the information was produced. For this, the investigation agency could possibly produce a technician’s report, who may depose as to the existence of other files of a similar nature saved on the laptop during the relevant time. Relying on Section 114 of the Act,[48] the Court may then presume that the laptop was working smoothly at that time.

Examples such as these can be multiplied. The point remains that the text of sub-section (4) is alive to these possibilities and therefore, uses the word “any”. This is not to say that the conditions enlisted in sub-section (2) need not be proved. It only means that a certificate may not always be able to prove all the conditions and evidence aliunde may therefore be required. Unfortunately, the Court in Arjun Panditrao[49] missed an opportunity to consider this.

The primary-secondary conundrum: A needless enquiry?

In Arjun Panditrao[50], based on the non obstante clause in sub-section (1) of Section 65-B, the Supreme Court proceeded to hold that Section 65-B operates independently of other provisions in the Act.[51]

While such reasoning seems reasonable at a first glance, it fails to consider a more nuanced justification for the presence of a non obstante clause in sub-section (1) of Section 65-B. Under the Act, the best proof of a document is the document itself. This type of evidence is known as primary evidence. When primary evidence is not available, the Act permits the use of secondary evidence. However, secondary evidence can only be used when certain pre-conditions mentioned in the Act are satisfied. Ordinarily, had there not been any special provisions for electronic evidence, printouts, CDs, USB drives and the like would arguably have been classified as secondary evidence under the general scheme of the Act. This means that their use in evidence would only have been permitted when special conditions for the admission of secondary evidence as stated in Sections 63[52] and 65[53] of the Act were met.

Section 65-B seeks to make this process easier in respect of electronic evidence to prevent parties from having to satisfy these conditions for secondary evidence on each occasion. To do so, it includes a non obstante clause in sub-section (1) so that it can provide a deeming fiction for all electronic records to be considered as proof of the contents of the original record itself. Unfortunately, the Supreme Court fails to consider this aspect in Arjun Panditrao[54].

Instead, it opines that the electronic record in sub-section (1) is in the nature of secondary evidence and therefore, a certificate is necessarily required. At this juncture, a comparative dialogue with the law in Singapore may have been of some importance. As is well-known, the British had introduced evidence statutes in India and Singapore that were nearly identical to one another.[55] While Singapore has amended its statutory provisions from time to time, the statute has not been overhauled and parallels in the statutory scheme are apparent.[56] Section 64[57] of the Evidence Act of the Republic of Singapore (SEA) says that when a copy of a document in the form of an electronic record is shown to reflect that document accurately, the copy is primary evidence. Section 65 of the SEA which defines secondary evidence, excludes such copies from its purview. In this light, it is not a foregone conclusion that electronic evidence would necessarily be in the nature of secondary evidence. On a comparative analysis with the SEA, one may even understand the deeming fiction in Section 65-B to mean that the Act explicitly veers away from the conclusion that electronic records would be secondary evidence.

Other than the comparative lessons, there are also normative reasons why Section 65-B does not classify electronic records as secondary evidence. Unlike physical documentary evidence, electronic record scan also be auto-generated. Call-data records are a prime example, as are the automatic confirmations of purchase orders placed with online retail platforms. In such cases, there is no primary evidence per se. This is because the computer output of auto-generated call records will always be an exact reproduction of the data stored on the server. The SEA probably takes cognizance of this possibility and includes such electronic records within the ambit of primary evidence itself.

As a corollary, there may not be any individual who may be able to testify as to the operating condition of the server when such information was fed into it. In this context, if one were to follow the interpretation in Arjun Panditrao[58] as to the contents of a certificate and its mandatory nature, there would simply not be any individual who may be able to furnish such a certificate. To get around this, the very fact that the document was generated would have to be considered as being presumptive of the smooth working condition of the cloud or computer network or server, unless it can be shown that the server has been tampered with. While this aspect has been considered in a decision by the Delhi High Court,[59] the Supreme Court in Arjun Panditrao[60] does not delve into it. Interestingly, this question too had been considered by the UK Court of Appeals in R v. Spiby.[61] The Court of Appeals observed that in such cases, the computer or mechanical instruments could be presumed to be in good working condition unless shown otherwise.[62] In fact, even the SEA has now adopted a similar position. Section 116-A of that statute has created a rebuttable presumption in favour of the working condition of the computer device.

However, this is not all. There is another way in which this primary-secondary dichotomy constraints the understanding of the Court on electronic evidence and thereby, the mandatory need for a certificate. In the decision, the Court observes thus:

Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a 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”, as defined, happens to be a part of a “computer system” or “computer network” (as defined in the Information Technology Act, 2000[63]) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4).[64]

Consider an electronic agreement that is verified by an e-signature, linked to a national identity card, and is stored on the cloud. As per these observations in Arjun Panditrao[65], a party to the agreement who wishes to rely on it would have to bring a computer system or computer network before the Court. However, she may simply choose to step into the witness box, log onto her cloud-based account, and introduce the electronic agreement in evidence. In such a case, no certificate would be needed as the information is on the cloud. Alternately, if the party were to log onto their cloud account, download the agreement, take a printout, and introduce it in evidence, only those conditions in sub-section (2) which pertain to the device from which the document was printed would have to be satisfied. The others would not come into play at all. Naturally, these conditions can and should be allowed to be met by the oral evidence of the party relying on the agreement.

However, none of these scenarios are considered by the Supreme Court in Arjun Panditrao[66]. It only considers the law in a paradigm where there was a computer or device on which some electronic information was generated and this information was sought to be led as evidence. In our view, had the Court considered the unique nature of emerging forms of electronic evidence, it may have arrived at a different conclusion on the mandatory need of a certificate.

Conclusion

The arguments advanced by us in this comment are only buttressed by the final outcome of the case. On facts, the Court finally held in favour of the respondents recognising that there may be instances where even after the involvement of the Court, a third-party may refuse to give the requisite certificate under Section 65-B(4).[67] Given that such scenarios are a reality, it is worth asking whether it was necessary to preserve the sanctity of a mandatory certification requirement, only to later relax it when parties have done everything possible in their means to obtain the certificate. In fact, by carving out such an exception, the Supreme Court implicitly recognises the fact that a certificate is not a sine qua non for establishing the authenticity of an electronic record.

Moreover, the Court has also misconstrued what a 65-B(4) certificate can possibly prove by reading the things listed in that sub-section in a conjunctive manner. Not to mention, a primary-secondary conundrum has been imported into electronic evidence even when the Act seems to eschew that divide for this type of evidence.

A comparative dialogue, especially with the United Kingdom where the historical antecedents of the Act lay, and with the SEA which is pari materia with the Act, too, would have led the Court to a different conclusion. In fact, this case is a good example of instances where comparative learning may have contributed effectively to jurisprudential development. Summarily put, while Arjun Panditrao[68] presented an opportunity to resolve the controversy surrounding electronic evidence in India, it appears that the Court only perpetuated the errors inhering in the interpretation adopted in Anvar[69].

† Graduate of NLSIU, Bangalore, an Advocate at Bombay High Court, e-mail: dhruvagandhi95@gmail.com.

†† Graduate of NLSIU, Bangalore, an Associate at Keystone Partners, Delhi, e-mail: nikitagarg1006@gmail.com.

[1] <http://www.scconline.com/DocumentLink/dQ7rc5Jn>.

[2] Ins. by Information Technology Act, 2000 (Act 21 of 2000), S. 92 and Sch. II

[3](2020) 7 SCC 1

[4] (2020) 7 SCC 1, at 19-20 (paras 7-8).

[5] (2014) 10 SCC 473 

[6] (2014) 10 SCC 473

[7] (2018) 2 SCC 801 

[8]Id., at 809-811 (paras 23-30).

[9] (2014) 10 SCC 473

[10] (2018) 2 SCC 801

[11] (2020) 7 SCC 1

[12] (2014) 10 SCC 473

[13] (2018) 2 SCC 801 

[14] (2020) 7 SCC 1

[15] (2014) 10 SCC 473

[16] Smith G. (2002), Legislating for Electronic Transactions, Computer and Telecommunications Law Review, 8(3) at 58.

[17] (2020) 7 SCC 1

[18] <http://www.scconline.com/DocumentLink/2DzzZZ6F>.

[19] Evidence Act, 1872 (Act 1 of 1872), S. 65-A.

[20]Vaidialingam A. (2015), Authenticating Electronic Evidence: S. 65-B, Evidence Act, 1872, NUJS Law Review, 8, 43 at 47.

[21]These conditions ensure that the information was fed into the computer device and the computer output was generated in the ordinary course of business. They also seek to ensure that the computer device was operating properly during the material time frame or that even if it was out of operation, it was not such as to affect the accuracy of the electronic records in question. See Sub-section (2).

[22] <http://www.scconline.com/DocumentLink/jKNlwH2s>.

[23]Sekhri A. (22-10-2015), Electronic Evidence, The Proof of Guilt, <https://theproofofguilt.blogspot.com/2015/10/electronic-evidence-part-4.html>.

[24] (2005) 11 SCC 600

[25] (2005) 11 SCC 600

[26] (2014) 10 SCC 473

[27] (2014) 10 SCC 473

[28] (2015) 7 SCC 178

[29] (2005) 11 SCC 600

[30] (2014) 10 SCC 473

[31] (2005) 11 SCC 600

[32] (2017) 8 SCC 570

[33] (2018) 2 SCC 801

[34] (2014) 10 SCC 473

[35] (2020) 7 SCC 1 

[36] (2014) 10 SCC 473

[37] (2020) 7 SCC 1

[38] (2014) 10 SCC 473

[39] (2020) 7 SCC 1 , at 37-38 (para 34).

[40] https://www.legislation.gov.uk/ukpga/1984/60/contents

[41] (2020) 7 SCC 1, at para 29.

[42] 1993 AC 380 : (1993) 2 WLR 102

[43] (2020) 7 SCC 1

[44]Supra note 3, at 27 (para 23). The first decision that the Supreme Court cited was that of Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849 : (1962) 1 SCR 33. This decision simply references an earlier decision that interpreted S. 76 of the Mines Act, 1952 and held that the words “any one” should be read as “every one”. The second decision cited was that of Om Parkash v. Union of India, (2010) 4 SCC 17. This decision does not specifically hold that the word “any” can mean “all” and neither does it provide any criteria for when a court may consider the words “any” to mean “all” or “every”. Both these decisions, therefore, serve as mere examples and do not advance a case for why the word “any” in S. 65-B(4) should be read to mean “all”.

[45] (2014) 10 SCC 473

[46] (2014) 10 SCC 473

[47]Supra note 4.

[48] S. 114 of the Evidence Act, 1872 says, “Court may presume existence of certain facts.— The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

[49] (2020) 7 SCC 1 

[50]  (2020) 7 SCC 1

[51](2020) 7 SCC 1, at 38 (para 31).

[52] <http://www.scconline.com/DocumentLink/jKNlwH2s>.

[53] <http://www.scconline.com/DocumentLink/agf32S6C>.

[54] (2020) 7 SCC 1

[55]Benny P.T. (2018), Reflections on Section 2(2) of Singapore Evidence Act and Role of Common Law Rules of Evidence — New Discoveries on Intentions and Implications, Singapore Academy of Law Journal, 30, 224 at 225 and 237.

[56]See Siyuan C. (2013),The Future of the Similar Fact Rule in an Indian Evidence Act Jurisdiction: Singapore, NUJS Law Review, 6, 361.

[57] <http://www.scconline.com/DocumentLink/1j9W6PGu>.

[58] (2020) 7 SCC 1

[59]Kundan Singh v. State, 2015 SCC OnLine Del 13647: (2016) 1 DLT (Cri) 144 (para 64)

[60] (2020) 7 SCC 1

[61](1990) 91 Cr App R 186.

[62]Id., at 191-192.

[63] <http://www.scconline.com/DocumentLink/QFpg4Fi0>.

[64](2020) 7 SCC 1 , at 38 (para 32).

[65] (2020) 7 SCC 1 

[66] (2020) 7 SCC 1

[67](2020) 7 SCC 1 ., at 46 (para 45).

[68] (2020) 7 SCC 1

[69] (2014) 10 SCC 473

'Lex Mercatoria' by Hasit SethExperts Corner

Introduction

Electronic evidence presents a tall challenge to the traditional rules of authenticating documentary evidence. The notions of primary and secondary evidence evolved for paper documents are difficult to apply to electronic or digital evidence. Provenance of electronic evidence is extremely hard to establish with any certainty in many instances. Hence, Evidence Act, 1872, as amended, provides for a certificate mechanism under Section 65-B(4) to authenticate electronic evidence.

 

Supreme Court of India in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [1] has held that Section 65-B(4) is a mandatory requirement to admit electronic evidence unless the original electronic document (e.g., a tablet, laptop or mobile phone with a recording)[2] is produced in evidence through the document/device owner’s personal authentication as a witness. Supreme Court, hence, differentiated primary and secondary evidence standards for electronic evidence where secondary evidence for electronic evidence requires the Section 65-B(4) certificate.

 

Supreme Court has also put an interesting exception to the Section 65-B(4)’s certificate requirement: When even after applying to the relevant authority holding the electronic document sought to be proved in evidence and threafter to a court under procedural or evidence law, if the certificate cannot be obtained, then the production of the same is excusable in law. This is the impossibility exception based on two Latin maxims quoted by the court: lex non cogit ad impossibilia (the law does not demand the impossible) and impotentia excusat legem (if an impossibility bars obedience to law, the disobedience of law is excused)[3]. This article explores the judicially created impossibility exception to the certificate requirement under Section 65-B(4) of the Evidence Act, 1872.

I. Authenticating Electronic Evidence

A.  Indian Approach

1.     Authenticating Documentary Evidence

 

Under the Evidence Act, 1872 documentary evidence needs proof of contents[4] of a document by primary[5] (document itself) or secondary evidence[6] of certain types and in specific situations to admit the document in evidence. Five types of secondary evidence of contents of a document are permissible: certified copies, two types of reliably reproduced copies, counterpart against a non-executant and oral accounts of someone who has personally seen the document[7]. There are seven specific situations in which secondary evidence of existence, condition or contents can be given[8]. Signatures and handwriting need to be proved as of those they are attributed to[9].

 

Sir James Fitzjames Stephen, the author of The Indian Evidence Act (I. of 1872): With an Introduction on the Principles of Judicial Evidence describes the purpose of documentary evidence as[10]:

 

One single principle runs through all the propositions relating to documentary evidence. It is that the very object for which writing is used is to perpetuate the memory of what is written down, and to furnish permanent proof of it. In order that full effect may be given to this, two things are necessary, namely, that the document itself should whenever it is possible be put before the Judge for his inspection, and that if it purports to be a final settlement of a previous negotiation, as in the case of a written contract, it shall be treated as final, and shall not be varied by word of mouth. If the first of these rules were not observed the benefit of writing would be lost. There is no use in writing a thing down unless the writing is read. If the second rule were not observed people would never know when a question was settled, as they would be able to play fast and loose with their writings.

 

2.     Authenticating Electronic Evidence

Electronic evidence created a challenge for which the Evidence Act, 1872, as minimally amended over the last century, had no answer. The mutability of electronic record and various forms essentially meant that few,  if any, forms of electronic or digital evidence have the characteristic of being “original”, a necessity under the Evidence Act, 1872’s requirement of original document itself being the primary evidence of its contents unless secondary evidence of such a document is admissible under the said Act. Hence, the law was amended to introduce specific provisions for electronic evidence[11]. Principal among the amendments were authentication amendments introduced by Sections 65-A and 65-B in the  Evidence Act, 1872.

 

The complete code for authenticating electronic evidence is in Sections 65-A and 65-B. The Supreme Court of India in Anvar P.V. v. P.K. Basheer [12] described the procedure as:

 

  1. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.… The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:

(i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

 

The conditions necessary for admitting electronic evidence based on a certificate have been explained as[13]:

  1. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) there must be a certificate which identifies the electronic record containing the statement;

(b) the certificate must describe the manner in which the electronic record was produced;

(c) the certificate must furnish the particulars of the device involved in the production of that record;

(d) the certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

The Supreme Court in Arjun Panditrao[14] case quoted the above conditions and process for authenticating electronic evidence from Anvar P.V.[15] case with a few added directions, which were:

 

(a) Section 65-B(4) certificate is unnecessary if the device on which an electronic document is first stored is itself produced in court through a witness e.g., owner who operated a laptop, tablet, etc. stepping into the witness box to produce the laptop, mobile, etc. in evidence. If the document is on a computer that cannot be brought to court then the only means of producing the document is by way of a certificate under Section 65-B(4)[16].

 

(b) Section 65-B(4)’s requirements for issuing the certificate are to be read as cumulatively “all of them” instead of text’s “… any of them…”[17].

 

(c) No proof of an electronic record by oral evidence is admissible if the requirements of Section 65-B are not complied with[18].

 

(d) Anvar P.V.[19] case stood clarified to make para 24 therein, “… if an electronic record as such in used a primary evidence under section of the Evidence Act…” to be read without the words “… under Section 62 of the Evidence Act…”[20].

 

(e) A trial court may at any stage before the completion of a trial, order the production of the certificate under Section 65-B(4) subject to a criminal court in criminal trial safeguarding against any prejudice to the accused[21].

 

(f) Authorities to examine the draft rules suggested by the Committee of five Judges (formed in consequence of the Chief Justices Conference held in April 2016) in its November 2018 report for statutory enactment in future. Data retention directions for call detail records issued to the cellular companies and internet service providers till rules and directions are enacted under Section 67-C of the Information Technology Act, 2000[22].

 

(g) The word “and” in Section 65-B(4)’s text “best of his knowledge and belief” has to be read as “or” because a person cannot testify to best of his or her knowledge and belief at the same time[23].

 

B.  A Review of Foreign Approaches

The Supreme Court noted in Arjun Panditrao[24] case (in the main judgment)  that Section 65-B(2)-(5) are reproductions of Section 5 of the UK’s Civil Evidence Act, 1968’s Section 5(2)-(5) with minor changes. But the UK law’s aforementioned section has been repealed by UK’s  Civil Evidence Act, 1995. Main judgment in Arjun Panditrao[25] case is authored by Justice R.F. Nariman on behalf of the Bench that included Justices V. Ramasubramanian and Ravindra Bhat. Justice V. Ramasubramanian has written a supplementing opinion as well. The discussion immediately next is based on Justice V. Ramasubramanian’s supplementing opinion unless noted otherwise.

 

Anonymity of cyberspace has made election documents easily manipulatable and hence suspicious[26]. US approach also uses certificates under Federal Rules of Evidence, Rules 902(13) and (14) but requires notices  to the opposing side. In the UK electronic evidence in civil cases is covered by the Civil Evidence Act, 1995, while electronic evidene in criminal law is governed by the Police and Criminal Evidence Act, 1984 where its Section 9 concerning electronic evidence stood amended by the Youth Justice and Criminal Evidence Act, 1999[27]. In all these reforms in the common law world regarding electronic evidence, essentially more hearsay evidence was made admissible with requirements of notice to the other side whether it be in electronic form or not. Business records exception to the rule against hearsay is now available in most advanced common law countries.

 

India has not undertaken any such comprehensive reform of the rule against hearsay[28], which is the underlying theme of the whole of Evidence Act, 1872 with carefully included exceptions. Justice S. Rangarajan of the Delhi High Court urged the consideration of reform to the hearsay rule way back in 1972[29]. But since long no reforms to the evidence law in India are forthcoming.

 

IV. Primary and Secondary Distinction Remains

 

The judgment in Arjun Panditrao[30] case retains the primary and secondary evidence for electronic evidence in these terms:

 

  1. … All this necessarily shows that Section 65-B differentiates between the original information contained in the “computer” itself and copies made therefrom – the former being primary evidence and the latter being secondary evidence.

     

Because of retaining primary and secondary evidence distinction for electronic evidence, the Supreme Court has required production of original electronic document in form of pen drive, mobile phone, etc. through the owner of such device stepping into the witness box. When it is impossible to bring “computer” being part of a computer system or computer network then the certificate under Section 65-B(4) can be produced[31].

 

The implicit assumption behind retaining the primary and secondary evidence distinction for electronic evidence is the miniaturisation of computing technology. Pharesology of Section 65-B(2)’s conditions (a)-(d) presumes computers to be of the old mainframe era where data is stored that can be retrieved either as saved or as a printout, etc. as a generated report from data inputted consistently. Computers have evolved such that there may not be many a large monolith mainframe that cannot be produced in court easily rather than mobiles, pen drives, memory cards, tablets or watches that can be produced easily in courts. Rather computing now is a process applied in varied devices like mobile phones, tablets, sensors, smart watches, etc. There are no old style PC computers per se in these devices but they contain the core computing abilities of any common computer. Hence, such devices which are almost pocket sized can easily be produced in court as “originals” through a witness authenticating the device and its contents. This production of a device used for storing contents as created has naturally higher probability of genuiness than say a prinout of a document stored in memory of a mobile phone to determine the genuineness of the electronic document rather than rely on a certificate alone in such instances.

 

V. Methods to Get the Document

 

The Supreme Court grappled with the problem of not getting the relevant certificate despite all possible efforts by a litigant. The question that the court posed to itself was: What if the Section 65-B(4) certificate could not be obtained because the litigant may not be in possession of the electronic device storing the electronic document and despite applying to the authority holding the electronic document a certificate under Section 65-B(4) was not being issued? As a remedial first step, the Supreme Court noted the several provisions across statutes that enable a Court to order production of a document. The Supreme Court was essentially countering the major premise of Shafhi Mohammad v. State of H.P.[32] that the certificate could not be obtained by persons who are not in possesion of an electronic device containing the stored electronic document.

 

Section 165 of the Evidence Act, 1872 enables a Judge presiding over a civil or a criminal trial to order production of any document or thing for obtaining proof of relevant facts. Civil Procedure Code, 1908 provides in Order 16 concerning “Summoning and Attendance of Witnesses” empowers the trial court to issues summons to produce document (Rule 6), require persons present in court to give evidence or produce a document (Rule 7). Further, under Order 16, the trial court can also issue a proclamation for attendance and (or in lieu) issue a warrant  or even attachment of property if a person summoned fails to produce a document (Rule 10).

 

Under the Criminal Procedure Code, 1973, a criminal trial court can issue summons to produce a document or a thing (Section 91). Further, the criminal trial court can penalise a person refusing to produce a document (Section 349).

 

While several procedural provisions exist by which a Judge in a civil or criminal trial can order production of a document, in practice this is hard to do. Hence, the Supreme Court’s prescription that the trial Judges will assist  the litigants to obtain the Section 65-B(4) certificates under existing procedural methods in practice may be cumbersome and lengthen the trial itself.

 

The Impossiblity Maxims

While the Supreme Court has pointed to the existing procedural measures to obtain Section 65-B(4) certificates from anyone possessing the electronic device that contains the impugned electronic document, the court has also contemplated situations where despite all efforts, the relevant Section 65-B(4) certificates cannot be obtained by a litigant.

 

In the facts of Arjun Panditrao case[33], the Supreme Court noted that despite all efforts made by respondents through the High Court and otherwise, the litigant failed to obtain the Section 65-B(4) certificate from the government authorities who held the original electronic recording.

 

The prerequisite[34] for considering impossiblity of obtaining the Section 65-B(4) certficates are:

  1. Litigant has applied for the requisite Section 65-B(4) certificate to the relevant authority but either the that authority has refused or does not respond to the request then the litigant has to take help of court.
  2. Litigant seeks a court’s help to use its powers under the evidence, civil procedure and criminal procedure to summon the certificate from the authority refusing or delaying the same.
  3. If the litigant still does not get the relevant Section 65-B(4) certificate, then the litigant has done all she can to obtain the certificate.

 

For such impossiblity in obtaining the Section 65-B(4) certificate even after the prerequisites are performed, the Supreme Court applied two Latin maxims:

 

(1) lex non cogit ad impossiblia (law does not demand the impossible); and

(2) impotentia exusat legem (in case of disability that makes it impossible to obey the law, the disobedience is excused). These maxims have been cited many times by Indian courts and at times even in the context of mandatory provisions of law[35].

In Arjun Panditrao[36] case, the Supreme Court noted that the litigants had done everything they could to obtain the Section 65-B(4) certificate but they had failed. Hence, the Court held that,

  1. 51. On an application of the aforesaid maxims …, it is clear that though Section 65-B(4) is mandatory, yet, on the facts of this case, the respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.

     

Conclusion

While the Supreme Court has created stability in law regarding electronic evidence by maintain the primary and secondary evidence distinction, it has also pressed into service existing procedural and evidentiary provision to obtain the elusive Section 65-B(4) certificate when the electronic document is not possession of a litigant seeking a Section 65-B(4) certificate. But most importantly, the Court has created a judicially recognised exception to the requirement of the Section 65-B(4) certificate when a litigant has done all she can to obtain such a certificate. The way court did it was not by reading down the mandatory nature of the Section 65-B(4) but by using well-recognised Latin maxims when it is impossible for a litigant to obtain the certificate despite seeking it from relevant authority and thereafter also seeking a court’s assistance through its procedural powers.

The Supreme Court has done its best to interpret the existing law on electronic evidence, but in future there will be a need to reform the rule against hearsay following the rest of the common law world.

 

† Hasit B. Seth practises as an independent Counsel in the Bombay High Court and in arbitrations.

 

[1] See Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

[2] Id. at 37.

[3] Id. at 46.

[4] Evidence Act, 1872 does not use the terminology of “authenticating” a document for evidentiary purposes (The word “authenticating” is used in Ss. 82 and 85 for specific types of endorsements and is not used generally for authentication for all documents). The  Evidence Act, 1872 uses “proof of contents of documents” to verify genuineness of a document’s contents. This article proposes that “authentication” word be used for discussion purposes rather than “proof of contents” of a document. The reason is that it is commonly said, “have you proved the document?” while intent is to ask have you provided proof of contents of the document? US Federal Rules of Evidence uses authentication as a term to verify genuineness of all kinds of evidence, as explained in Federal Rules Evidence 901 as: “(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Further, for electronic documents, Ss. 65-A and 65-B do not use the terminology of “proof of contents of documents”; S. 65-A uses “contents of electronic record may be proved…”. Hence, the choice of using a common umbrella term “authentication” for verifying genuineness of all kinds of evidence, be it electronic – analog or digital, physical objects, real, paper or any other kind.

[5] Evidence Act, 1872, Act 1 of 1872, S. 62.

[6] Id., S. 63.

[7] Id., S. 63.

[8] Id., S. 65.

[9] Id., S. 67.

[10] James Stephen, An Introduction to the Indian Evidence Act: The Principles of Judicial Evidence 176-177 (1902).

[11] See Information Technology Act, 2000, S. 92 and 2nd Schedule (both now omitted).

[12] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, 483; Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 28-29.

[13]Anvar P.V., (2014) 10 SCC 473 at 484.

[14] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 28-29.

[15] See Anvar P.V., (2014) 10 SCC 473.

[16] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37.

[17] Id. at 27-28.

[18] Id. at 30.

[19] Anvar P.V., (2014) 10 SCC 473.

[20] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37-38.

[21] Id. at 55.

[22] Id. at 57.

[23] Id. at 55.

[24] Id. at 34.

[25] Arjun Panditrao Khotkar, (2020) 7 SCC 1.

[26] Id. at 68.

[27] Id. at 78.

[28] Evidence Act, 1872 does not define hearsay unlike US’s Federal Rules Evidence 801 that defines hearsay as, “(c) Hearsay. ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

 [29] Rangarajan, S., The Anglo-Saxon Experiment Concerning the Rule against Reception of Hearsay Evidence and What it may Mean to us., Journal of the Indian Law Institute, 1972 can be accessed HERE .

[30] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37.

[31]Id. at 37.

[32] See Shafi Mohammad v. State of H.P., (2018) 2 SCC 801.

[33]Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 46.

[34] Id. at 46.

[35] Id. at 48-49.

[36] Id. at 50.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:

 “…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

In the instant matter, appellant sexually abused his own daughter/victim. There are two views that is:

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.

In the present appeal, trial court’s judgment is challenged by the appellant.

Analysis, Law and Decision

Bench noted that the present matter was based on direct and corroborative evidence.

High Court considered the following:

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.

Corroboration

Evidence given by way of corroboration cannot be said to be substantive evidence.

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.

Bench relied upon the following cases for the purpose of electronic evidence:

Bench laid down the finding that electronic evidence also needs to be proved just like any other evidence.

Further, the Court stated that it is not inclined to accept the FSL report at least for the purpose of inferring that it is the accused only who has taken those images or done recording. At the most, it can only be said that in the articles referred to in FSL report some pornographic images were found.

Bench stated that it was cautious of the relationship between the victim and accused. It was difficult to opine what compelled the victim not to state those facts which she stated before the police.

Present set of facts and circumstances warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to the provisions of law.

Statement of the victim recorded under section 164 of CrPC has not been given the status of examination-in-chief in all circumstances (except in case of disability as provided in clause (b) to sub-section 5A to Section 164 of Cr.P.C.).

Supreme Court’s decision in Shivanna expressed the desire to consider the statement under Section 164 CrPC as examination in chief, amendment to that effect is not brought to Court’s notice.

Hence, with all pains, High Court had no alternative than setting aside the conviction of the appellant for the offence punishable under Section 376(2)(i) of IPC and under Section 506 of IPC, though conviction under Section 67-B of the Information and Technology Act was maintained.

Lastly, while parting with the decision, High Court opined that the authorities concerned of the State or Central Government will take some initiative in incorporating certain amendment under relevant laws as to give status to Section 164 statement as that of the examination-in-chief in all eventualities.

We hope that legislatures will also consider the practical realities of the life which the victim has to face. The trauma which victim has to undergo, after the incident does not stop there and when it comes to facing real-life issues, there may be occasion for the victim to forego all the trauma which she had undergone and to take U turn.

[Imran Shabbir Gauri v. State of Maharashtra, 2021 SCC OnLine Bom 511, decided on 31-03-2021]

Advocates before the Court:

Mr Aniket Vagal for the Appellant (Legal Aid). Mrs M. M. Deshmukh, APP for the State.

Op EdsOP. ED.

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:

  1. … 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:

  1. 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:

  1. 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.

[9] Penal Code, 1860.

[10] http://www.scconline.com/DocumentLink/2DzzZZ6F.

[11] http://www.scconline.com/DocumentLink/dQ7rc5Jn.

[12] (2005) 11 SCC 600, 714.

[13] (2005) 11 SCC 600.

[14] http://www.scconline.com/DocumentLink/jKNlwH2s.

[15] http://www.scconline.com/DocumentLink/agf32S6C.

[16] (2014) 10 SCC 473 .

[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.

[28] 2016 SCC Online Bom3236.

[29] Supra Note 17.

[30]  Ibid.

[31] (2016) 5 SCC J-1.

[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.

[39] 2016 SCC OnLine MP 938

[40] Supra Note 17.

[41] (2017) 8 SCC 570, 589.

[42] Supra Note 17.

[43] (2014) 6 SCC 537.

[44] Supra Note 17.

[45] Ibid.

[46]  Ibid.

[47] Ibid.

[48] Ibid.

[49] (2018) 2 SCC 801.

[50] Ibid.

[51]  Supra Note 17.

[52] Supra Note 50.

[53] (2020) 7 SCC 1

[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.

[69]2016 SCC OnLine Mad 451.

[70] Supra Note 54, p. 50.

[71] http://www.scconline.com/DocumentLink/lT5UPCaK.

[72] Supra Note 54.

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 BriefsSupreme Court

Supreme Court: A Division Bench comprising of AM Khanwilkar and Dinesh Maheshwari, JJ. has held that the contents of a memory card or a pen drive in relation to a crime amount to a ‘document’ and not a ‘material object’ and the accused would be entitled to a copy of the same to prepare his defence under Section 207 of the Code of Criminal Procedure, 1973. However, if the electronic evidence pertained to a rape case then the trial court, keeping in mind the sensitivity of the contents, could deny a copy but may allow the inspection to the accused and his/her lawyer or expert for presenting effective defence during the trial.

The Court was deciding upon a case relating to Kerala actor’s plea for handing over a copy of the visuals of the alleged sexual crime committed on an actress in February 2017. The Court observed that if the prosecution was to rely on the fact of recovery of a memory card, then it could be treated as a material object. However, if the contents of the memory card are sought to be relied upon by the prosecution, then the same would be documentary evidence.

The judgment referred to Section 3 of the Indian Evidence Act, 1872 which includes electronic records in the definition of ‘documentary evidence’. The Court observed that tape records of speeches, and compact discs containing visuals, etc have been held to be “documents” by precedents. Also, Section 2(1)(t) of the Information Technology Act, 2000 [IT Act, 2000] defined “electronic record” to mean ‘data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche’. In this backdrop, the Court held that the footage/clipping contained in such a memory card/pen drive, being an electronic record as envisaged by Section 2(1)(t) of the IT Act, 2000, is a “document” and cannot be regarded as a “material object”. [P. Gopalkrishnan v. State of Kerala, 2019 SCC OnLine SC 1532, decided on 29-11-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Manojit Mandal and Joymalya Bagchi, JJ., in the wake of rising cyber crimes in the present times, issued directions to ensure that the investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.

Allegations, as mentioned in the FIR, pertain to a matrimonial dispute between the petitioner and his wife. Further, it has been alleged that the petitioner with the object of defaming and denigrating the wife had posted objectionable pictures of wife on a social network platform and circulated such materials widely. Offences under Sections 66 E & 67A of IT Act were not added in the FIR, an investigation by Assistant Sub-Inspector of Police in violation of Section 78 of the IT Act was conducted.

Keeping in view the facts and circumstances of the present case and due to lack of materials on record that objectionable pictures were circulated without consent and knowledge of de-facto complainant, the Court was of the opinion that custodial interrogation of accused/petitioner may not be necessary and he may be granted anticipatory bail subject to the conditions as laid down under Section 438(2) of CrPC, 1973.

Further, the High Court felt that there is a crying need to train and familiarise members of the police force in the matter of collection, reception, storage, analysis, and production of electronic evidence. The bench also stated that:

“It is also relevant to note that electronic evidence by its very nature is susceptible to tampering and/or alteration and requires sensitive handling. A breach in the chain of custody or improper preservation of such evidence render it vitiated and such evidence cannot be relied in judicial proceedings. Necessary certification under Section 65D of the Information Technology Act is also a pre-requisite for admissibility of such evidence. Even if such certification is present, reliability of electronic evidence depends on proper collection, preservation and production in court. Any lacuna in that regard would render such evidence vulnerable with regard to its probative value. These factors have come to our notice not only in the present case but also in a number of cases argued before us in recent times.”

For the said purpose, certain directions were issued to ensure that investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.

Following are the directives:

  • Proper training of members of police force in reception, preservation and analysis of electronic evidence.
  • Only the officers who have been trained in accordance to the manner as stated above shall be involved in the investigation of crimes involving offences under IT Act and the offences in which electronic evidence plays a pre-dominant part.
  • Every district shall have a cyber cell comprising of officers with specialised knowledge in the matter of dealing with electronic evidence in order to render assistance to local police.
  • A standard operating procedure regarding preservation, collection, analysis and producing electronic evidence to be submitted by Director General of Police, West Bengal on the next date of hearing.
  • Specialised forensic units to be set up in the State in order to facilitate examination and/or analysis of electronic evidence.

The matter has been posted for further hearing on 11-03-2019. [Subhendu Nath v. State of W.B., 2019 SCC OnLine Cal 242, Order dated 18-02-2019]

Case BriefsSupreme Court

Supreme Court: In the case where the reliability of the Call Detail Records (CDRs) produced as proof was questioned for not complying with the requirements under Section 65B of the Evidence Act, 1872, the bench of S. A. Bobde and L. Nageswara Rao, JJ said that the mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. It was held that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later.

The bench said that though the admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue, if the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.

The Court was hearing an appeal against conviction in a case of abduction and murder where the Police had collected the CDRs of all the mobile phones that were recovered from the accused and the mobile phones of the deceased. The appellants had objected to the credibility of these CDRs. Rejecting the contention of the appellants, the Court said that the crucial test is whether the defect could have been cured at the stage of marking the document and applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency but not now. [Sonu v. State of Haryana,  2017 SCC OnLine SC 765, decided on 18.07.2017]

 

Supreme Court

Supreme Court: Deciding the admissibility of the secondary evidence pertaining to electronic evidence, the 3-judge bench of R.M. Lodha, CJ and Kurian Joseph and R.F. Nariman, JJ overruled the ruling of the Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600  (Navjot Sandhu Case) to that extent. The bench noted that the Court in the aforementioned case omitted to take note of Sections 59 and 65A of the Evidence Act, 1872 and hence erred in holding that that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65 of the Evidence Act, of an electronic record.

Overruling the legal position as to electronic evidence as laid down in Navjot Sandhu Case, the Court, applying the principle of generalia specialibus non derogant (special law will always prevail over the general law), held that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same.

In the present case where appellant and respondent were represented by Vivek Chib and Kapil Sibal, respectively, the appellant sought the set aside the election of the elected candidate on account of corrupt practice and produced CDs which were made after recording the speeches, songs and announcements using other instruments and by feeding them into a computer. It was held that since the CDs produced were not certified, the same were not admissible as secondary evidence. Anvar P.V. v. P.K. Basheer, Civil Appeal No. 4226 of 2012, decided on 18.09.2014

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