Update: With the Bharatiya Sakshya Adhiniyam of 2023 replacing the Indian Evidence Act of 1872, Section 65B of the IEA is now Section 63 of the BSA.
INTRODUCTION
With the advent of internet revolution, the Indian legal system incorporated technology into its proceedings through the Amendment Act of 2000 to the Indian Evidence Act, 1872. The amendment was introduced to add Section 65A & 65B to the act, keeping the concerns regarding the authenticity of electronic records intact and to ensure their adaptability in courtrooms. The admissibility of electronic evidence in Indian courts, since then have been a topic of extensive discussion, one of the reasons for which is the prevailing ambiguity in provisions incorporated thereunder.
The classification of electronic evidence as a secondary category of acceptable evidence in court has sparked several important questions surrounding its admissibility. One significant query is whether Section 65B is mandatory for the admissibility of electronic evidence, and at what stage the production of the certificate should ideally take place. Should the certificate be presented after the evidence is submitted in court or when it is referred to during legal proceedings? Moreover, the validity of the evidence and the applicability of different methods in civil and criminal cases have remained uncertain.
THE EVOLUTION OF ADMISSIBILITY
Legislatively, Section 65A of the Indian Evidence Act provides a special provision for electronic records to be considered as evidence, while Section 65B governs their admissibility through a deeming fiction. Accordingly, when electronic records are submitted as evidence in the court, they are treated as “documents” under the Evidence Act, subject to the conditions specified in Section 65B (4). Like the contents of a memory card, in relation to a crime, are considered a “document” rather than a “material object”, as observed in the case of Dileep v. State of Kerala.
Electronic evidence including digital recordings of telephone conversations and data extracted from hard disks can be admitted as evidence in legal proceedings provided that their authenticity is established.
Dharamvir v. CBI, Delhi High Court 2009
This judgement reinforced the probative value of digital records under the IT Act 2000 when proper evidentiary procedures are followed.
The purpose of these provisions is to facilitate the use of electronic evidence in legal proceedings. They also serve as an exception to the best evidence rule, which generally requires the production of the original document as primary evidence. However, Section 65B (4) does not explicitly state the evidentiary value of the certificate or whether it is mandatory to satisfy the conditions mentioned in subsection (2) or at which stage it should be presented. Through various judgments, the Supreme Court has endeavored to clarify the legislative intent behind these provisions. It has been established as a history of considering a certificate following any of the three conditions mentioned in Section 65B (4) to hold more weight than oral or documentary evidence.
In 2005, the court ruled that printouts of phone records could be considered admissible evidence even without a certificate under Section 65B (4). However, this judgment was later overruled in Anvar. In the latter case, the Hon’ble Court held that Section 65B is a complete code, and evidence from any other source would not be permissible. It emphasized that the Indian Evidence Act does not allow proof of an electronic record through oral evidence and stated that a certificate under Section 65B (4) is mandatory.
In 2017, the court reevaluated the requirement of a certificate and concluded that certificates under Section 65B (4) are only a “mode of proof.” Therefore, the non-production of a certificate on an earlier occasion could be considered a curable defect. This viewpoint was further supported by another judgment in 2018, which stated that the requirement of a certificate is procedural and not mandatory. It can be relaxed in certain circumstances, such as when a party does not have control over the original device. Consequently, Section 65B is not considered a complete code.
Upon analyzing these judgments and the associated contradictions, it becomes evident that there is a gap in the interpretation of the law. The case of Arjun Panditrao Khotkar v. Kailash Kishanrao addressed and resolved these contradictions comprehensively. The court emphasized that Section 65B operates independently of the rest of the Indian Evidence Act.
THE LEGAL LANDSCAPE
Over the years, various cases such as Navjot Sandhu, P. Anvar, and Shafhi Mohammad have attempted to address the ambiguity surrounding these provisions. However, due to the differing circumstances and related factors in each case, there was no unified stance on these issues. As a result, the legal landscape remained unclear, and doubts persisted. In a significant development, the three-judge bench of the Honorable Supreme Court recently in the case of Arjun Panditrao v. Kailash Kishanrao has provided a definitive and comprehensive clarification. This landmark judgment stands as the latest interpretation of the relevant provisions, offering a consistent approach in line with the legislative intent.
In a civil appeal, a defeated candidate and an elector accused a successful candidate of improperly filing nomination papers after the deadline. The respondents presented video-camera recordings (VCDs) from the RO’s office as evidence, but the RO refused to provide a Section 65B (4) certificate. The Supreme Court clarified two issues: (1) A certificate is necessary when presenting electronic evidence as secondary evidence, not when the original record is available. (2) Compliance with Section 65B (4) is mandatory, even if obtaining a certificate is not possible. The High Court held that the oral testimony of an employee at the RO’s office regarding the regular collection of VCDs, their inclusion in their own records, and the absence of recent complaints about the working of the office, is not barred by Section 65B, complying with the requirements u/s Section 65B (4).
The Supreme Court upheld the decision of the High Court for its reliance on the other evidences than the VCD. It noted that section 65A and 65B govern the admissibility of electronic evidence as a complete code, and the production of a certificate is not needed if the original record is presented. Acknowledging the conflict between the judgments in Anvar and Shafhi, the Court upheld the decision in P. Anvar, emphasizing the requirement of a written and signed certificate. Therefore, in the said case, the absence of such a certificate, lead the VCDs to not be admitted as evidence.
INTERPRETATION OF SECTION 65B (4)
In distinguishing between primary and secondary evidence, the court highlighted that the original information contained within a computer is considered as primary evidence. Copies derived from it, on the other hand, are inherently secondary evidence. The court also clarified that the phrase “any of the conditions” in Section 65B (4) should be interpreted as “all.” Therefore, since an electronic record, as mentioned in subsection (1), is considered secondary evidence, the requirement of a certificate in accordance is mandatory.
In cases such as Shafhi Mohammad, where the parties involved do not have first-hand possession of the data and are unable to obtain a certificate, the said court provided some relaxation. It stated that an application must be presented to the judge to seek relaxation of the mandatory requirement under Section 65B (4). However, the subsequent judgment in Arjun Panditrao overruled this decision. It held that the portion of Section 349 of the Criminal Procedure Code (CrPC) stating “…who are not in possession of an electronic device” is entirely incorrect. The court clarified that an application can always be made to a judge for the production of such a certificate from the relevant person under Section 65B (4), even if the person refuses to provide it at the first instance.
KEY TAKEAWAYS
These judgments highlight crucial questions regarding the use of Section 65B, the timing of certificate submission (immediately or later in court), the methods of proving it in a court of law, and the contents of the certificate itself.
Indeed, the case of Arjun Panditrao Kotkar provides answers to these questions. It clarifies that a certificate is necessary only when presenting electronic evidence as secondary evidence. If the original electronic record, which serves as primary evidence, is produced, then the submission of a certificate is not required. The owner of the computer, tablet, or mobile phone can directly introduce the original electronic record as evidence by testifying that they own or operate the device where the information is initially stored.
DIFFERENTIATING THE CIVIL & CRIMINAL CASES
In its interpretation of Section 65B, the court also distinguishes the use of certificates in civil and criminal cases. In civil cases, if defective or no certificates are provided despite a demand made to the concerned authority, the judge conducting the trial should summon the person(s) mentioned and require them to provide the necessary certificate. This applies when the electronic record is presented as evidence without the required certificate. In such cases, the authority lies with the trial judge.
As per the provisions of Section 65B (4) read with Sections 207, 91, and 311 of the Criminal Procedure Code (CrPC), electronic evidence must be furnished no later than before the trial commences. Although it is within the discretion of the court to permit the filing of electronic evidence at a later stage before the trial concludes.
However, in the case of CDs, VCDs, chips, and similar storage media, they must be accompanied by a certificate obtained at the time of taking the document, following the provisions of Section 65B. Without such a certificate, the secondary evidence related to that electronic record becomes inadmissible.
THE CERTIFICATE
In terms of proving a certificate in court, the judgment provides guidance based on reasoning. Section 65B (4) specifies that a certificate should include certain elements to establish its authenticity and authority. It should identify the electronic record containing the statement, describe the manner in which it was produced, and provide particulars of the device involved in the production of the electronic record. These provisions aid in the identification and lend authority to the presented evidence.
To demonstrate that the electronic record was produced by a computer, the certificate should be issued either by a person holding a responsible official position in relation to the operation of the relevant device or the management of the relevant activities.
The judgment in the case of Anvar established guidelines on the required content of a certificate, which include:
- Identifying the electronic record containing the statement.
- Describing the manner in which the electronic record was produced.
- Furnishing the particulars of the device involved in the production of that record.
- Addressing the applicable conditions mentioned under Section 65B (2) of the Indian Evidence Act.
- Being signed by a person holding a responsible official position in relation to the operation of the relevant device.
As for the content of the certificate, Section 65B (4) states that it should be made “to the best of the knowledge and belief of the person stating it.” The court noted that the conjunction “And” between knowledge and belief should be interpreted as “or” since knowledge and belief are contradictory to each other.
CONCLUSION
In conclusion, the landmark judgment of Arjun Panditrao Kotkar v. Kailash Kishanrao Kotkar has ushered in a new era of clarity and understanding regarding the admissibility of electronic evidence in Indian courts. This judgment stands as a shining example of the judiciary’s commitment to upholding the intent of the legislature and its role as a pillar of support for the legal system and society at large.
As the realm of technology continues to evolve, the Indian legal system must remain adaptive and responsive, incorporating electronic evidence while upholding principles of fairness and justice in its courtrooms. This judgment serves as a beacon for the future, setting a precedent that will continue to guide and shape the admissibility of electronic evidence in Indian courts for years to come.
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This article was first published on Manupatra.