A two judge bench of the Supreme Court, comprising of Justice L. Nageswara Rao and Justice SA Bobde, on 18.7.2017 in the case of Sonu v State of Haryana, (Criminal Appeal No. 1416/2013, 1653/2014, 1652/2014), upheld the conviction of the accused, Sonu, for the offence of Kidnapping and Murdering under the IPC, thereby dismissing his criminal appeal. One of main grounds taken by the accused during the appeal was that the CDRs1 of the mobile phone of the accused, which was a crucial part of the evidence, for proving the guilt of the accused beyond reasonable doubt and being relied upon by the prosecution, should be eschewed/disregarded from consideration as they were inadmissible, for non-compliance with the requirements under Section 65-B of the Indian Evidence Act, 1872 ("Evidence Act") as admittedly they were not certified in accordance with sub-section (4) of section 65-B. The accused placed strong reliance on the three judge bench decision of the Supreme Court in Anvar P.V. v P.K. Basheer, (2014 10 SCC 473) by which the Supreme Court held in unequivocal terms that an electronic record by way of secondary evidence shall not be admissible as evidence unless the requirements of Section 65-B are satisfied.
Section 65-B of the Evidence Act and subsequent principle laid in Anvar
In 2002, the Evidence Act underwent major changes by introduction of the Information Technology Act, 2000 ("IT" Act). Amendments were made in the Evidence Act, to make provisions for admitting evidence by way of electronic records. Explanation to Section 3 was added to incorporate all electronic records in the definition of 'Documentary Evidence' under the Evidence Act. Further, Section 65-A and Section 65-B were introduced with the amendments, as special provisions pertaining to the admissibility of electronic evidence. Section 63 and Section 65 deal with the manner and conditions for relying on secondary evidence.
Before the judgement in Anvar (supra), the law laid down in State of NCT Delhi v Navjyot Singh (2005) 11 SCC 600 was being followed, which held that irrespective of the compliance with requirements of Section 65-B, there is no bar in adducing secondary evidence even for electronic records as per Sections 63 and Section 65. The court further held that even if a certificate containing the details as stipulated by sub-section (4) of Section 65-B is not filed, it does not render the evidence inadmissible as secondary evidence under Section 63 and Section 65 can still be adduced.
However, the Supreme Court in Anwar (supra) overruled the above position. The Court held that for any electronic evidence to be admissible in its secondary form, it is necessary to meet the mandatory requirements of Section 65-B, which includes giving a certificate as per terms of Section 65-B (4), at the time of proving the record and not anytime later, failing which the electronic record will be considered inadmissible.
Supreme Court's decision in Sonu and the dilemma raised on the law laid down in Anvar
Despite the decision in Anwar, being rendered by a 3 judge bench, a division bench of the Supreme Court in this case rejected the reliance placed on Anvar by the accused, and thereby denied him an opportunity to raise an objection with regard to inadmissibility of electronic evidence for the want of certification as per section 65-B.
The Court after placing reliance on a few decisions of the Supreme Court, divided the objection with regard to admissibility of a document into two categories- a) The first objection is when that the document is per se inadmissible. b) The second is when the objection is directed not on the admissibility of document in evidence, but towards the method or mode of proof of evidence. It was held that the objection with regard to mode or method of proof has to be raised at the time of marking the document as exhibit, and not later. Whereas, the issue of admissibility of a document which is inherently inadmissible, for instance, statements under Section 161 Code of Criminal Procedure 1973 (CrPC,) can be taken up at an appellate stage as well, as such an issue strikes at the foundation of the document. The mode or method of proof is procedural in nature, and if such objection is not taken at trial, it cannot taken at the appellate stage.
In laying down the above principle, the court relied on the decision in RVE Venkatachala Gounder, (2003) 8 SCC 752, that the crucial test for the purpose of determining when an omission to object becomes fatal is, whether the objection if taken at the appropriate stage, would have enabled the party tendering the evidence to cure the defect and render a regular mode of proof.
Applying the above principle, the Supreme Court in Sonu held that the defect of relying on the CDRs without the appropriate certificate, is a defect in the mode or method of proof, as CDRs are not per se inadmissible. Hence, it held that such an objection cannot be allowed to be raised at the appellate stage. This is because, had such an objection been taken at the trial stage, the court could have given an opportunity to the prosecution to rectify the defect, which will be denied at this stage if the case of the accused is accepted.
The Conundrum Caused by Sonu v State of Haryana
While a larger bench of the Supreme Court, clearly and unequivocally, stated in 2014, that any electronic evidence in secondary form will be inadmissible, if filed without meeting the requirements of Section 65 B(4), the two judge bench in Sonu, has expressed doubts over this principle
The Court in the last part of this judgement noted that the court in Anvar has not applied the principle of prospective ruling. While noting this, the Court expressed concerns over the law laid in Anvar being applied retrospectively on one hand, and on the other hand, it refrained from answering whether the judgement in Anvar could be made prospective in nature and has left this question open.
In such a situation, the Supreme Court's touching upon the issue of prospective nature of the judgment in Anvar and leaving the issue open at the end has caused great dilemma and opened a pandora's box. In this regard and owing to the confusion created, it remains to be seen if the Supreme Court's decisions will be used to reopen or challenge admissibility of evidence in pending trials where the requirements under Section 65B were not complied with.
Since the Court in the instant case has held the requirements of Section 65B to be the ones relating to mode/method of proof (despite Anvar holding that non-compliance with 65B strikes at the very admissibility of the evidence), it will be worthwhile to see the impact of this judgement on the ongoing trials and proceedings.
1 Call Detail Record (CDR) is a file containing information such as the identities of sources (points of origin), the identities of destinations (endpoints), the duration of each call etc.