One of the most controvertible issues in the area of admissibility of evidence is the compliance of the mandate under Section 65B(4) relating to the production of electronic evidence as secondary evidence. The said provision stipulates that electronic evidence must be accompanied with a certificate in the format specified therein. The provision has been the subject of interpretation in various decisions of the Apex Court and an attempt has been made to synopsize the same in this article.
The controversial issue whether the condition stipulated under Section 65B(4) for production of certificate along with electronic evidence is mandatory or not was put to rest by the three-judge bench decision in Anvar P.V. v. P.K. Basheer1 wherein it was held that secondary evidence of electronic record would be inadmissible if not accompanied by a certificate stipulated under section 65B of the Indian Evidence Act, 1872. Thus, in the court's opinion for a party seeking to produce electronic evidence as secondary evidence, it is mandatory to also produce a certificate in the format prescribed under Section 65B(4), without which the said evidence would be rendered inadmissible.
Despite the law being settled in Anvar P.V (supra) several judgments of the Supreme Court following the said decision took diametrical views by holding that the compliance with the condition of production of certificate under section 65B was not compulsory. Two such decisions which led to great confusion are Tomaso Bruno and Anr. v. State of Uttar Pradesh2 and Shafhi Mohammad v. State of Himachal Pradesh3.
In Tomaso Bruno (supra) it was held that secondary evidence of contents of document can also be led under Section 65 of the Evidence Act and the same is in contradiction to the decision in Anvar P.V (supra). Following this, in a more recent decision in Shafhi Mohammad (supra), the Apex Court went a step ahead when it held that the requirement of certificate under Section 65B(4) is not always mandatory. Further clarifying the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced, the Court held that such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act and the applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.
Thus, in complete disregard to its earlier decision in Anvar P.V (supra), which had settled the law on the subject matter, the Apex Court reopened the issue giving room for speculation and doubt on the same.
Recently, the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal4 after ruminating on the effect of the divergent views on the subject, reaffirmed the view taken in Anvar P.V (supra) and overruled the judgments of Tomaso Bruno (supra) Shafhi Mohammad (supra). It would be apposite to reproduce the following observations made by the Court:
"The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) 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). The last sentence in Anvar P.V. (supra) which reads as ".if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act.", With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited."
Apart from putting an end to the controversy surrounding the issue of compliance of the Section 65B mandate the Apex Court in Arjun Panditrao Khotkar (supra) also made a relevant observation on an issue ancillary to the main issue, that is, certificate under Section 65B can be allowed to be produced at a subsequent stage if it has not been produced along with the electronic record and at the time of the filing of the charge sheet. While holding so the Apex Court quoted, with approval, the following observations made by the High Court of Rajasthan in Paras Jain v. State of Rajasthan1 in this regard:
"23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured along with the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced along with the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form."
Another ancillary issue which has presented itself before the Court is the stage at which an objection regarding the non-compliance of the mandate of Section 65B can be raised. In the case of Sonu @ Amar v. State Of Haryana5, the Supreme Court observed that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage, however, objection with respect to mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. Thus, the Court held that the objection with respect to non-compliance of Section 65B being an objection only with respect to the mode or method of proof cannot be raised for the first time in the Appellate stage. The relevant observations of the Court are as follows:
"It is clear from the judgments referred to supra 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 crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. 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. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. 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. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. 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."
As is evincible from the above discussion, the Supreme Court has interpreted the applicability of the provision in a manner that preserves and ensures the authenticity of evidence in a trial. It cannot be refuted that although procedural law can sometimes be immolated for the sake of justice, however, it is important to protect the sanctity of a trial, especially the evidence stage. The mandate under Section 65B, if followed, would ascribe a certain level of legitimacy and accuracy to electronic evidence and therefore the view taken by the Supreme Court in Anvar P.V (supra) is in harmony with the object and purpose of introducing the provision.
Any decision arrived at in a case is founded and based on, primarily, the evidence in that particular case and any compromise on the veracity of the same would only result in a tainted trial and therefore, a questionable decision. Thus, the Courts of law must ensure that procedural mandates which afford credence and value to the evidence must be adhered to and any compromise, even for the sake of justice and equity, can be made only within the confines of the law.
Footnotes
1 (2014)10 SCC 473
2 (2015) 7 SCC 178
3 2018 2 SCC 801
4 (2020) 7 SCC 1
5 2015 SCC OnLine Raj 8331
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