Contributed by: P&A Law Offices
On 14th July 2020, the Hon’ble Supreme Court of India (“Supreme Court”) delivered its judgment in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others[Civil Appeal Nos. 20825-20826 of 2017] (“Arjun Panditrao Khotkar’s case”). The Supreme Court while overruling the case of Shafhi Mohammad v. State of Himachal Pradesh[(2018) 2 SCC 801] (“Shafhi Mohammad’s case”), reaffirmed the law laid down in Anvar P.V. v. P.K. Basheer & Others[(2014) 10 SCC 473] (“Anvar P.V.’s case”) which held that the certification requirement under Section 65B(4) of the Indian Evidence Act, 1872 (“Evidence Act”) is a condition precedent to the admissibility of electronic evidence.
In the recent past, the certification requirements under Section 65B of the Evidence Act have been a topic of discussion in various scholarly articles. However, through this article we intend to discuss and restrict our views to the detailed understanding of the practical applicability of the aforementioned provision and focus on the clarity of technical requirements under Section 65B(4) of the Evidence Act as enumerated by the Supreme Court in Arjun Panditrao Khotkar’s case.
INTRODUCTION TO THE ISSUE
The Division Bench of the Supreme Court while dealing with the interpretation of Section 65B of the Evidence Act referred the case to the larger bench of the Supreme Court in view of the conflict between Shafhi Mohammad’s case and Anvar P.V.’s case on the issue of mandatory requirement of certification under Section 65B(4) of the Evidence Act for admissibility of electronic evidence.
The Three-Judge Bench of the Supreme Court in Anvar P.V.’s case held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of the Evidence Act are satisfied. Thus, in case of electronic evidence stored in CDs, VCDs, chips, etc.; the same shall be accompanied with the certificate in terms of Section 65B of the Evidence Act, obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
The Division Bench of the Supreme Court in the case of Shafhi Mohammad, taking a contrary view against the observations of the Three-Judge Bench in Anvar P.V.’s case held that the certificate requirement under Section 65B(4) of the Evidence Act is not always mandatory and the condition mandated as per Section 65B(4) of the Evidence Act for admissibility of electronic evidence is only to be imposed when the person producing evidence is in the control of the device and not the opposite party. Notably, admissibility of electronic evidence produced by a party who is not in possession of the device, cannot be excluded on the ground of absence of certificate, which the party cannot secure under Section 65B(4) of the Evidence Act.
FINDINGS OF THE SUPREME COURT IN ARJUN PANDITRAO KHOTKAR’S CASE
Certificate not required if original document is produced: -
The Supreme Court referring to Section 65B of the Evidence Act observed that sub-section (1) of Section 65B of the Evidence Act begins with a non-obstante clause, and it then goes on to mention that the information contained in an electronic record produced by a computer becomes a “document” by deemed fiction. This deeming fiction only takes effect if the conditions enumerated under Section 65B of the Evidence Act are satisfied in relation to both the information and the computer/ device in question and if such conditions are met, the “document” shall then be admissible in any proceedings without further proof or production of the original. Section 65B(1) of the Evidence Act clearly 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. 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 owner, 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) 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 65B(1), together with the requisite certification under Section 65B(4) of the Evidence Act.
Certificate under Section 65B (4) of the Evidence Act, a condition precedent for admissibility of electronic evidence: -
The Supreme Court while discussing Shafhi Mohammad’s case held that in the light of Anvar P.V.’s case, the law laid down in Shafhi Mohammad’s judgment is incorrect. It was observed 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 major premise of Shafhi Mohammad’s case that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. The Supreme Court by placing reliance on the provisions of the Evidence Act, the Code of Civil Procedure, 1908 (“CPC”) and Criminal Procedure Code, 1973 (“CrPC”) held that an application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) of the Evidence Act. As such, the Supreme Court held that Shafhi Mohammad’s case does not lay down the correct position of law and is therefore overruled.
Application to be filed in court if person/ authority refuses to give certificate: -
The Supreme Court further held that in circumstances where all bonafide efforts made to get the requisite certificate under Section 65B(4) of the Evidence Act from the concerned authority or person are exhausted, and the person or authority either refuses to give such certificate, or does not reply/ fails to comply with such demand, the party asking for such certificate can apply to the Court for its production under the aforementioned provisions of the Evidence Act, CPC or CrPC. It was further held that once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate and the said party must then be relieved from the mandatory obligations contained in Section 65B(4) of the Evidence Act.
Stage at which the certificate is to be filed: -
On the issue of the stage at which such certificate under Section 65B(4) of the Evidence Act must be furnished to the Court, the Supreme Court relying on Anvar P.V.’s case, observed that such certificate must accompany the electronic record when produced as evidence in court. It was held that it is only applicable in cases where such certificate could be procured by the person seeking to rely upon an electronic record. On the other hand, 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 aforesaid circumstances. 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 with all the documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC. It was further held that till the hearing in a trial is not complete, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record can then be admitted and relied upon in evidence.
Directions issued by Supreme Court to cellular and internet service providers: -
The Supreme Court on this issue noted that the Department of Telecommunication’s license conditions [i.e. under the ‘License for Provision of Unified Access Services’ framed in 2007, as also the subsequent ‘License Agreement for Unified License’ and the ‘License Agreement for provision of internet service’] generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year. Therefore, if the police or other individuals (interested, or party to any form of litigation) fail to secure those records, or secure the records but fail to secure the certificate, within that period, the production of a post-dated certificate (i.e. one issued after commencement of the trial) would in all probability render the data unverifiable. This places the accused in a perilous position, as, in the event the accused wishes to challenge the genuineness of this certificate by seeking the opinion of the Examiner of Electronic Evidence under Section 45A of the Evidence Act, the electronic record (i.e. the data as to call logs in the computer of the service provider) may be missing, post the one year period. To obviate this issue, the Supreme Court issued general directions to cellular and internet service providing companies to maintain Call-Data Records (“CDRs”) and other relevant records for the concerned periods in tune with Section 39 of Evidence Act in a segregated and secure manner if a particular CDR or other records are seized during investigation in the said period. Notably, concerned parties can then summon such records at the stage of defense evidence or if such data is required to cross examine a particular witness. The above directions shall be applicable in criminal trials till appropriate directions are issued under various relevant terms of the applicable license or under Section 67C of Information Technology Act, 2000. The Supreme Court also directed that appropriate rules and directions should be framed in exercise of the Information Technology Act, 2000 by exercising powers such as in Section 67C of the Information Technology Act, 2000, 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.
The Supreme Court through this judgement in the case of Arjun Panditrao Khotkar has brought abundant clarity on the conflicting views and practical applicability of the mandatory requirement of certification under Section 65B(4) of the Evidence Act for establishing the admissibility of an electronic evidence which had become a mere formality in certain circumstances. Notably, looking at it from a practical standpoint, the much needed clarification provided by the Supreme Court on the options available to the party who cannot obtain the certificate under Section 65B(4) of the Evidence Act will certainly help parties circumvent objections on the admissibility of electronic evidence.
Contributed by: P&A Law Offices
The above article has been authored by Mr. Gaurav Mahajan(Associate Partner) and Mr. Saksham Babbar(Associate) from P&A Law Offices, New Delhi.
The views expressed are solely those of the authors and should not be attributed to the author’s firm or its clients, or any other organization.