Recently, a three-judge bench of the Supreme Court comprising justices Rohinton Fali Nariman, S. Ravindra Bhat and V. Ramasubramanian, vide judgment dated July 14, 2020,1 gave finality to the legal conundrum pertaining to the requirement of certificate for producing electronic evidence under Section 65B of the Indian Evidence Act, 1872 (hereinafter referred to as "Act"). This judgment arose from a reference by a Division Bench of the Supreme Court which required reconsideration of a two-judge bench judgment in Shafhi Mohammad v. State of Himachal Pradesh2 in view of the three-judge bench judgment in Anvar P.V. v. P.K. Basheer3 .
The three-judge bench delivered its judgment and clarified that certificate required under Section 65B(4) of the Act is mandatory and a condition precedent to the admissibility of evidence by way of electronic record. The court further clarified that the required certificate under Section 65B(4) of the Act is unnecessary if the original document itself is produced.
The Hon'ble High Court of Bombay while hearing election petitions had ordered the Election Commission and concerned officers to produce the entire record of the election including the original video recordings to ascertain the time at which the nomination forms were presented to the Returning Officer, Election Commission. Pursuant thereto, the CDs/VCDs were produced without the written certificate as required under Section 65B(4) of the Act. The high court held that on "substantial compliance" of the requirement of giving certificate under Section 65B of the Act, the CDs/VCDs were admissible in evidence based upon the oral evidence in cross examination.
JUDICIAL INTERPRETATION OF SECTION 65B OF THE ACT OVER THE YEARS
One of the earliest notable decisions of the Supreme Court where the issue of production of electronic record as evidence arose is State (NCT of Delhi) v. Navjot Sandhu and Ors.4 The two-judge bench therein held that irrespective of the compliance with the requirements of Section 65B, there is no bar in adducing secondary evidence under Sections 63 and 65 of the Act, of an electronic record. It was held that even if a certificate is not produced as per the requirement under Section 65B(4) of the Act, it does not mean that secondary evidence cannot be given even if law permits such evidence to be given in the circumstances mentioned under Section 63 and 65 of the Act.
The said position was overturned in Anvar's case wherein the court held that Sections 63 and 65 of the Act have no application in the case of secondary evidence by way of electronic record and the same is wholly governed by Sections 65A and 65B of the Act. Section 65B being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act shall yield to the same. The court took note of the legal position as it stood in India being that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with. The court further held that Section 65A and 65B form a complete code in itself and an electronic record by way of secondary evidence shall not be admitted unless the requirements under Section 65B are satisfied, including a written certificate under Section 65B(4) of the Act.
Despite the law so declared in Anvar's case, a threejudge bench of the Supreme Court in Tomaso Bruno v. State of U.P.5 deviated from the settled position. On the issue of admissibility of evidence in a criminal case in which CCTV footage was sought to be relied upon, the court held that secondary evidence of contents of document can also be led under Section 65 of the Act. The court neither referred to Section 65B(4) in the judgment nor to the law laid down in Anvar P.V. case. In fact, it adverted to Navjot Sandhu case which was specifically overruled in Anvar P. V. case.
Thereafter, in Shafhi Mohammad, the Supreme Court held that requirement of certificate under Section 65B(4) is not always mandatory and the same being procedural can be relaxed by the court wherever interest of justice so justifies. The court clarified that the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced cannot be required to produce certificate under Section 65-B(4). In such a case, procedure under Section 63 and Section 65 of the Act can certainly be invoked.
THE SUPREME COURT DECISION
After an in-depth analysis of law governing electronic evidence, the Supreme Court overruled the Shafhi Mohammad case for being in teeth of the judgment in Anvar P. V. Further, judgment in Tomaso Bruno was declared per incuriam, for not laying down the law correctly and the legal position was clarified as under:
- The certificate required under Section 65B(4) of the Act is a condition precedent to admissibility of evidence by way of electronic record. Oral evidence in place of such certificate cannot possibly suffice as Section 65B(4) of the Act is a mandatory requirement of the law.
- The non-obstante provision of Section 65B(1) of the Act makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this regard, Sections 62 to 65 being irrelevant for this purpose.
- The law laid down in Anvar P. V. does not need to be revisited. However, 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 to be read without the words "under Section 62 of the Evidence Act..."
- The required certificate under Section 65B(4) of the Act 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. Such proof however, cannot be adduced if the device cannot be physically brought to court in cases where the computer happens to be a part of a "computer system" or "computer network". In such case, 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) of the Act.
- Where the requisite certificate has been sought from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under Section 165 of the Evidence Act, Order XVI of the Code of Civil Procedure or Section 91 and 349 of the Code of Criminal Procedure. Once such an application is made to the court, and the court directs that the requisite certificate be produced by the person to whom it sends a summons in this regard, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.
- The court observed that Section 65B is silent with regard to the stage at which such certificate is be furnished to the court. It was observed in Anvar's case that such certificate must accompany the electronic record when the same is produced in evidence. This is when such certificate could be procured by the person seeking to rely upon an electronic record. 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(s) under Section 65B(4) and require that such certificate be given by such person(s) exercising discretion depending upon facts of each case. This ought to be done when the electronic record is produced in evidence without the requisite certificate. In so far as criminal trials are concerned, the requisite certificate can be directed to be produced by the court at any stage, so that information contained in electronic form can be relied upon in evidence.
- Furthermore, the court issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period 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 defense evidence, or in the event such data is required to crossexamine a particular witness.
- y Lastly, Supreme Court was of the view that suitable rules and directions should be framed in exercise of the Information Technology Act, 2000, 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 after considering the report of the committee constituted by the Chief Justice's Conference in April 2016.
1 Civil Appeal Nos. 20825-20826 of 2017, 2407 and 3696 of 2018
2 Special Leave Petition (Crl.) No. 2302 of 2017, SLP (Crl.) No. 9431/2011 and SLP (Crl.) Nos. 9631-9634/2012
3 Civil Appeal No. 4226 of 2012
4 Criminal Appeal Nos. 373-375, 376-378, 379-380 and 381 of 2004
5 Criminal Appeal No. 142 of 2015 (Arising out of S.L.P. (Crl.) No. 1156/2013)
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