The requirement of a certificate for admissibility of electronic evidence under S 65B is a safeguard to ensure the security and authenticity of the evidence. SHOBHA GUPTA notes the errors in interpretation of Section 65 B by the Apex Court in various cases including the latest case of Arjun Panditrao and how it may lead to a mistrial.
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Read Part I and Part II.
The amendment and enactment of Section 65B filled a legislative void in the space of admissibility of electronic evidence. Yet, the confusion in its applicability due to contradicting judgments has only created further turmoil.
The erroneous interpretation of Section 65B
In Anvar P.V. v. P.K. Basheer, the court discussed both the nature and the manner of admission of electronic records. The bench held that any documentary evidence by way of an electronic record under the Evidence Act can be proved only in accordance with the procedure prescribed under Section 65-B in the light to Section 59 and 65A. Section 65-B deals with the admissibility of the electronic record.
The purpose of these provisions is to make admissible secondary evidence in electronic form, generated by a computer.
The section starts with a non-obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded, or copied in optical or magnetic media produced by a computer, will be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original.
The very admissibility of such a document i.e. electronic record which is a computer output depends on the satisfaction of the four conditions under Section 65-B(2).
Thus the Evidence Act does not contemplate or permit proof of an electronic record by oral evidence as an option to complying with the requirements of Section 65-B of the Evidence Act.
The Supreme Court clarified in the Anwar case that the person relying on the electronic record needs only to state in the certificate that the contents are correct to the best of the knowledge and belief of the deponent. The Court further held that ‘electronic records’ being more susceptible to tampering, alteration, transposition, excision, etc. such safeguards were necessary to avoid a failure of justice. It added that the certificate must accompany the electronic record when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to the electronic records sought to be used as evidence.
Thus the Evidence Act does not contemplate or permit proof of an electronic record by oral evidence as an option to complying with the requirements of Section 65-B of the Evidence Act.
The 3 Judges’ Bench further observed that “the evidence relating to electronic record, as noted hereinbefore, 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. …. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B.”
Thus Navjot Sandhu was held as ‘not a good law’, by specifically observing that “Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record.”
To that extent, the court in Anvar lays down the correct law. However, the observation that follows, is erroneous and has led to much confusion and the sooner they are set aside the better.
The court observed in the Anwar case that the situation would have been different if the appellant had adduced primary evidence, by making available in evidence the CDs used for announcements and songs. The Court observed that “had those CDs used for objectionable songs or announcements been duly seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true”.
Observations in the Anvar case run plainly contrary to the provisions of Section 65B, which makes no distinction between “primary” evidence and “secondary” evidence
It was further clarified in the Anvar case that “Notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, 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.”
It is here that the court went wrong in distinguishing between primary evidence and secondary evidence when it comes to proof of electronic records.
These observations run plainly contrary to the provisions of Section 65B, which makes no distinction between “primary” evidence and “secondary” evidence. In doing so, the Court has virtually added words to Section 65-B to say that the certificate is needed for secondary evidence and not for primary evidence. The reliance on Section 62 was also misplaced to arrive at this conclusion.
Section 65A and 65B are a complete code as is evidence from the non-obstante clause. Moreover, Section 61 to 65 deal with conventional evidence i.e. documents, which are not generated on an electronic device, whereas Sections 65-A & B deal with electric evidence to the excision of Section 61 to Section 65.
But the court went on to state that secondary evidence of the contents of the document can also be led under Section 65 of the Evidence Act. This statement is plainly erroneous and contrary to the provisions of Section 65B.
In Tomaso Bruno v. State of U.P. the Supreme Court noted that “with the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation.”
With the increasing impact of technology in everyday life and, as a result, the production of electronic evidence is increasingly being used to establish the guilt of the accused or the liability of the defendant.
Electronic documents stricto sensu are admitted as material evidence.
The Hon’ble Apex Court thus observed that “the computer-generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65-B of the Evidence Act and subject to the fulfillment of the conditions specified in sub-section (2) of Section 65-B.”
To that extent, the judgment lays down the correct law. But the court went on to state that secondary evidence of the contents of the document can also be led under Section 65 of the Evidence Act. This statement is plainly erroneous and contrary to the provisions of Section 65B.
The above observations in Tomaso Bruno were in the nature of an obiter as the electronic record, namely the CCTV footage and the call records, were neither placed on record nor relied upon. Therefore the question of compliance or non-compliance of Section 65-B did not even arise. Maybe for this reason alone, the apex court referred to Ajmal Kasab case and Navjot Sanshu to appreciate the relevance of the electronic evidence in establishing the case either way. Tomaso Bruno, therefore, cannot be taken as law laid down on the subject.
The next case was Vikram Singh v. State of Punjab. Audiotapes recorded on magnetic media have relied on without a certificate under Section 65-B and in the absence of the said certificate, could not have been deemed to be valid evidence.
A three judges Bench of Supreme Court in Vikarn Singh held that the tape-recorded conversation was not secondary evidence, which required a certificate under Section 65-B since it was the original cassette by which ransom call was tape-recorded. They were primary evidence and did not require a certificate under Section 65B.
This judgment does not lay down the correct law. It followed the observations in Anvar’s case and misunderstood subsection (1) of Section 65-B, to hold that in the case of primary evidence, no certificate is required. The section itself makes no such distinction.
In Sonu v. State of Haryana, the Division Bench of Supreme Court held that it is no more res integra that an electronic record is not admissible in evidence unless it is accompanied by a certificate. The apex court discussed at what stage the objection regarding admissibility of an electronic record can be made and whether such an objection can be made at the appellate stage.
The court observed that the crucial test is whether the defect could have been cured at the stage of tendering the document in evidence.
Applying this test to the case in hand, if an objection was taken to the CDRs being marked in evidence without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency.The court held that the mode or method of proof is procedural and objections to the admissibility of the evidence, if not taken at the trial, cannot be permitted at the appellate stage.
A piece of electronic evidence without the requisite certificate does not become admissible, simply because no such objection was raised at the time of its production or later.
The Court father held that 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. CDRs do not fall in the said category of documents. Thus an objection that CDRs are inadmissible due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this appellate stage.
The view taken by the court, in this case, was not a correct view. A piece of electronic evidence without the requisite certificate does not become admissible, simply because no such objection was raised at the time of its production or later.
The issue again came up for court’s consideration in Shafi Mohammad v. State of H.P., wherein the Supreme Court held that in view of Tomaso Bruno case, it can be safely held that electronic evidence is admissible and provisions under Sections 65-A and 65-B of the Evidence Act are by way of a clarification and are procedural provisions.
The Court further held that if electronic evidence is relevant, it can be admitted in evidence subject to the Court being satisfied with its authenticity. The procedure for its admissibility may depend on the facts, such as whether the person producing such evidence is in a position to furnish a certificate under Section 65-B(4).
The Hon’ble Supreme Court further observed that Sections 65-A and 65-B of the Evidence Act, 1872, cannot be held to be a complete code on the subject.
The Hon’ble Supreme Court further observed that Sections 65-A and 65-B of the Evidence Act, 1872, cannot be held to be a complete code on the subject.
The Court placed reliance on Anvar to clarify that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. The Apex Court (Division Bench) further observed that the applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate, being in control of the said device, and not of the opposite party.
The Division Bench has gone completely wrong in this case to arrive at a finding that the requirement of a certificate under Section 65-B(4) is not always mandatory since it is procedural, and the procedure can be relaxed in the interest of justice.
This ruling is plainly erroneous and flies in the face of Section 65B.
Primary evidence is the document produced before the Court and the expression “document” is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
The Court held that when electronic evidence is produced by a party who is not in possession of a device, the applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. If this is not so permitted, the Court held, it will be a denial of justice to the person who is in possession of authentic evidence/witness.
Thus, the requirement of a certificate under Section 65-B(4) is not always mandatory. The court went a step ahead to say that the necessity of the requirement of certificate being procedural can be relaxed by the court wherever the interest of justice so justifies.
The Division Bench has gone completely wrong in this case to arrive at a finding that the requirement of a certificate under Section 65-B(4) is not always mandatory since it is procedural, and the procedure can be relaxed in the interest of justice.
A two Judges bench in Shaif Mohamed judgment took a view completely contrary to the ruling of the three judges bench in Anvar P V (supra) and Vikram Singh (supra) which is not permissible in law. In fact with these observations, the Division Bench reduced the mandatory provision of Section 65B to a discretionary provision and left everything to the wisdom of the Judge concerned.
In Union of India v. Ravindra V. Desai, certain details such as the date, time, month, etc. were missing from the Call Detail Record (CDR). Further, the Section 65-B certificate did not bear the designation of the person who had signed the certificate. Despite this, The Armed Forces Tribunal relied on the CDR. IN appeal the Supreme Court held that non-production of the certificate on an earlier occasion was a curable defect, which stood cured when a certificate was later filed by the witness upon being summoned.
In-State of Karnataka v. M.R. Hiremath, the facts were that the investigating agency filed a charge-sheet along with the electronic record i.e. the recording of the conversation between the complainant and respondent in a spy camera but without a certificate under Section 65B. At this stage a petition was filed in the High Court for quashing on the ground that no certificate under Section 65B was filed, the High Court quashed the proceedings. In the appeal, the Supreme Court held that the High Court has erred in coming to the conclusion that the failure to produce a certificate under Section 65-B(4) of the Evidence Act at the stage when the charge-sheet was not fatal to the prosecution. The need for production of such a certificate, the Supreme Court held, would arise when the electronic record is sought to be produced in evidence at the trial.
In my opinion, the Supreme Court failed to consider the provisions of section 174(5) CrPC, which mandates that the investigation agency as a matter of general procedure to file all the relevant documents along with the Charge-sheet. The failure to do so made the document inadmissible at a later stage.
The latest judgment in the line of cases is Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal. The facts in Arjun Panditrao (supra) were gross. In this case, the election of the Returned Candidate Shri Arjun Panditrao Khotkar to the Maharashtra State Legislative Assembly was under challenge, on the ground that the nomination forms were filed after the stipulated time on the last date.
The election petitioner in support of his case sought to rely upon video-camera arrangements that were made both inside and outside the office of the RO. The High Court ordered the Election Commission and the concerned officers to produce the entire record of the election of this Constituency, including the original video recordings. A specific order was made that this electronic record needs to be produced along with the ‘necessary certificates’.
In compliance with this order, such video recordings were produced by the Election Commission, together with a certificate issued with regard to the CDs/VCDs, which read as follows:
“Certificate-
This is to certify that the CDs in respect of video recording done on two days of filing nomination forms of date 26.9.2014 and 27.9.2014 which were present in the record are produced.”
Though the above certificate as produced on record by the concerned officer was not in compliance with Section 65-B. yet the High Court, in view of the fact that the said recordings were supported by the Officer-in-charge of the said record, held that the conditions of Section 65-B were fulfilled. Thus the said electronic record and the information contained therein could be used in the evidence. Based upon this evidence it was found that, as a matter of fact, the nomination forms by the RC had been improperly accepted. The election of the RC was therefore declared void. The Supreme Court upheld the view taken by the High Court.
The Supreme Court placed reliance on M. R. Hiremath to hold that as to the certificate under Section 65-B can be produced at any stage of the trial.
The Supreme Court, placing reliance on CBI v. R S Pai, held that “in terms of general procedure, the prosecution is obligated to supply all documents to an accused before the commencement of the trial, upon which reliance may be placed at any stage of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused.”
Fair trial denied
The court in Arjun Panditrao further held that “a balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 of the CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such a certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defense, this again will depend upon the justice of the case – discretion to be exercised by the Court in accordance with law.”
So, in other words, the Apex Court in Arjun Panditrao has held that in an appropriate case the court can exercise its discretion to allow, be it prosecution or the accused, to file the supporting certificate at a later stage.
The Apex Court has gone a step ahead of M R Hiremath to say that 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 form can then be admitted, and relied upon in evidence.
The court ought to have followed the law laid down in R S PAI, rather than permitting the document to be relieved at a later stage.
This is a very wide and liberal interpretation of the mandate of Section 65-B on the basis of Section 91 and S 311 of Cr. P. C and Section 165 of Evidence Act despite having held that Section 207 of Cr. P. C. is mandatory. The general principle in criminal proceedings is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial.
This requirement of full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.
This requirement of full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.
It is a well-settled principle of law that an accused has a fundamental right to have a fair trial under Article 21 of the Constitution. A fair trial is also a human right under the International Convention and Covenants chartered in human rights [Noor Aga v. State of Punjab; Dwarka Prasad Agarwal (D) By LRs. v. B.D. Agarwal and Others] , which includes the right of the accused to know before the commencement of Trial the best case set up by the prosecution against him/ her.
As regards the scope of Section 311 CrPC, in Natasha Singh v. CBI, the Apex Court has held that “the power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution or defence, or to the disadvantage of the accused. The power conferred under Section 311 CrPC must, therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.” A similar view is taken in Ratanlal v. Prahlad Jat.
Best of knowledge ‘and’ belief, not ‘or’ belief
Another issue of concern in Arjun Panditrao is that the Supreme Court has read down the expression ‘best of knowledge and belief’. It held that a person cannot testify to the best of his knowledge and belief at the same time.
An alternative reading of this clarification would be that such certificates under Section 65-B (4) can be based on best of the belief alone.
The mandatory certificate contemplated under Section 65B (2) certainly can not be based on one’s belief but can be based on the belief-based when such belief is the result of knowledge of facts as per the record.
This interpretation may well bring chaos and in a given case, and can render the certificate a mere formality. The mandatory certificate contemplated under Section 65B (2) certainly can not be based on one’s belief but can be based on the belief-based when such belief is the result of knowledge of facts as per the record.
The court in Arjun Panditrao examined the entire law on Section 65-B from Anvar P V till M R Hiremath . The Court reiterated that special provisions of Section 65-A and Section 65-B of Evidence Act is a complete code in themselves and that a written certificate under Section 65-B (4) is sine qua non for admissibility of such evidence.
To that extent, the court lays down the correct law. The Apex Court rightly found fault and thus overruled Tomaso Bruno to the extent that “Secondary evidence” of contents of the document can also be led under Section 65 of the Evidence Act The Court also rightly declared Shafhi Mohd. as bad law for being in the teeth of Anvar P V and following Tomaso Bruno.
Both Primary and Secondary evidence require Section 65B certificate
The Supreme Court proceeded to further clarify Section 65B to hold that “However, Section 65B(1) clearly differentiates between the ‘original’ document – which would be the original ‘electronic record’ contained in the ‘computer’ in which the original information is first stored -and the computer output containing such information, which then may be treated as evidence of the contents of the ‘original’ document.”
The Court held that this necessarily shows that Section 65B differentiates between the original information contained in the “computer” itself which forms primary evidence and copies made therefrom –the former being primary evidence, and the latter being secondary evidence.
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” is part of a “computer system” or “computer network”, where it is impossible to physically bring it to court, then the only means of providing information contained in such electronic records can be in accordance with Section 65B.
This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of 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…”. This may more appropriately be read without the words “under Section 62 of the Evidence Act,…”. With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited”.
This is an error in approach in Arjun Panditrao, Anvar P V and Vikram Singh wherein the Apex Court has erred in reading a non-existing differentia of primary or secondary evidence in Section 65-B (1) in respect to an electronic record.
The confusion possibly has occurred due to the second half of sub-section (1) of section 65B that says “if the conditions mentioned in this section are satisfied in relation to the information and computer in question ….and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”
The phrase “without further proof or production of the original”, might have persuaded the courts to assume that there can be two categories of electronic evidence, which is an unfounded assumption of a non-existing differentia.
A correct reading of subsection(1) makes it clear that irrespective of the fact whether an electronic device is used for recording or storage of the data was produced or not, the condition precedent admissibility as evidence remains the same. i.e. to support such electronic records with a certificate as necessitated in Section 65B (4). This is for the simple reason that in any case, even to store electronic data in original in any of the devices as mentioned above, one needs a system or an electronic device.
Data can be stored in any device upon insertion into another device like a tape recorder or computer etc. Here, in each such case, the ‘source’ then is the device through which it was generated and the device in which it is stored is the medium. For example, if a conversation is directly recorded in a cassette, then the recorder becomes the source and the cassette becomes the medium. To qualify as ‘admissible evidence’ under section 65B, even this cassette, needs to be supported by a certificate.
Extended definition of “secondary evidence”
It would also be worth pointing out here that the very fact that these two sections i.e. Section 65A and 65B, have been inserted after Section 65 which deals with secondary evidence makes it clear that the legislature in its wisdom has added an extended definition of secondary evidence and laid down the mandatory procedure, irrespective of the device on which the data is stored.
The bottom line is that since in cases of an electronic record, the data/ contents are recorded in electronic form, the requisite certificate is essential for the said electronics record to qualify to be treated as a ‘document’. Once this is done then no further proof or production of the original is required and the said electronic record itself can be looked into as direct evidence.
Thus no such distinction or differentia can be carved out, as sought to be done in Anvar PV, Vikram Singh and Arjun Panditrao, by differentiating an electronic record either as primary or secondary evidence.
Delays defeat justice
It is not a secret that in India criminal trials and civil cases take ages to conclude.
It is again a well-known fact that electronic devices become obsolete in no time and even technology phases out very fast. The people who manage the devices also change very fast as against the time which the litigation takes to complete.
The Supreme Court in various matters including Yusufalli Esmail Nagree and Anvar P. V. has taken judicial notice of the fact that the electronic records are prone to tampering. Therefore the standard of proof about its authenticity and accuracy has to be more stringent as compared to documentary evidence.
In today’s time, it is not a difficult job to adulterate any electronic data, even remotely. The Supreme Court has therefore time and again sounded the necessity to ensure accuracy, both in relation to the ‘information’ and the ‘source’.
The wide and liberal interpretation of Arjun Panditrao that no such certificate is required if the electronic record is primary evidence and that the certificate can be given at any stage till the conclusion of the hearing will lead to injustice to the accused and a mistrial. In Arjun Panditrao a deliberate attempt was made by the office of returning officer to not file the requisite certificate on record. Surely, such an attempt cannot be allowed to succeed.
This would be an abuse of the process of law. The mandatory provisions of Section 65-B read with other relevant amendments incorporated for the purpose of entertaining electronic records as pieces of evidence must be followed in all cases to endure that electronic evidence is not tampered with at a later stage.
It seems we may have to wait a little more for the courts to take a correct view strictly on the interpretation of Section 65B irrespective of the facts of the individual case but by keeping in mind the necessity and object of inserting sections 65A and 65B as a package provision.
(Shobha Gupta is a lawyer at the Supreme Court of India. She acknowledges the assistance of her colleague Adv. Prachi Apte in writing this series. Views are personal.)
