A 3-judge bench of the Supreme Court of India has recently clarified and elaborated the law on admissibility of digital evidence in judicial proceedings. The judgment dated 14.07.2020 was pronounced in answer to a reference made to the larger bench by a 2-judge bench in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors1.

The 2-judge bench found the reference necessary upon noting that differing views had been expressed by the Apex Court in Anvar P.V.2 and Shafhi Mohammad3 on the point of whether a certificate under S.65(B)(4) of the Indian Evidence Act, 1872 was a mandatory requirement, for admission of electronic evidence in judicial proceedings, or whether it could be waived in certain circumstances. Anvar P.V. (a 3-judge bench decision) had held that secondary evidence of an electronic record could not be admitted in judicial proceedings unless a certificate under S. 65(B) (4) accompanied it. Whereas, Shafhi Mohammad (a 2-judge bench decision), held that the requirements of S. 65(B)(4) were not always mandatory.

The Court answered the reference holding that a certificate under S. 65(B)(4) is 'condition precedent' to the admissibility of secondary evidence of contents of an electronic record, and oral evidence in place of such a certificate does not suffice; the provisions of S. 65A and S. 65B provide a complete code for proof of electronic records, and the drill prescribed by them must be followed when the content of electronic records are sought to be proved. The Court further elaborated the working of the law in this regard in the following terms.

Production of the original electronic record (primary evidence):

The Court held that where the original electronic record itself can be produced, a certificate under S. 65(B)(4) is not necessary. The production of the electronic record can be achieved by the owner of the computer-device (a laptop, computer tablet, mobile phone etc.), on which the electronic record is stored, by first producing the device before the Court, and then stepping into the witness-box to prove that the concerned device on which the original information is first stored is owned, or operated, by him.

Production of computer-output of the contents of the electronic record (secondary evidence):

The Court held that in cases where the 'computer' happens to be part of a 'computer system' or 'computer network' and it becomes impossible to physically bring such a system or network to the Court, then the only means of providing information contained in such electronic record would be to produce the computer-output (printout, CD, DVD, USB-drive etc.) of the electronic record. Such computer-output must be obtained in a manner compliant with S.65B, and it must be accompanied by a certificate under S.65(B)(4). This certificate may be issued by the appropriate person mentioned under S.65(B)(4) to the best of his knowledge 'or' belief.

It will be noted that the Court has carved out Ss. 65A & 65B as together constituting a separate code for admissibility and proof of contents of electronic records which is independent of the preceding provisions of the Evidence Act in this regard. Yet the Court has maintained the dichotomy of primary and secondary evidence that is fundamental to the law of evidence and is to be found in Ss. 62 & 63 of the Indian Evidence Act, 1872.

The Court has been able to maintain the dichotomy by reading the scheme of primary and secondary evidence within the framework of S.65B itself, with particular help from the line in S.65(B)(1) which provides that: "...(...computer output) shall be deemed to be also a document...and shall be admissible in any proceedings, without further proof or production of the original...".

Situations where the certificate under S.65(B)(4) cannot be produced despite due diligence and effort on part of the party that is required to produce it:

The Court considered the situation where the party that is required to produce the certificate under S.65(B)(4) is unable to procure the certificate -despite having exercised due diligence and effort- on account of refusal by the person, who is a in position to issue such a certificate, to issue it for one reason or another.

The Court has held that in such a situation, the party seeking to obtain the certificate can move an application before the Judge, in both civil and criminal proceedings, for obtaining the requisite certificate from the appropriate person entitled to issue it. The Judge has sufficient powers under the civil, criminal, and evidentiary procedural laws (for instance S. 165 of the Indian Evidence Act, 1872; Order XVI of the Code of Civil procedure, 1908; and Ss. 91 & 349 of the Code of Criminal Procedure, 1973) to compel the production of such certificate.

The stage at which the certificate under S.65(B)(4) is to be produced:

The Court has held that the certificate under S.65(B)(4) must accompany the electronic record when the record is produced before Court in evidence –though this only applicable to cases where it is possible for the party required to produce the certificate to procure the certificate from the appropriate person.

In cases where a defective certificate is given, or where the party has demanded the certificate from the concerned person yet the certificate has not been provided to the party for one reason or another: the Judge conducting the trial, when the evidence is produced before him without the requisite certificate, must summon the concerned person who is competent to issue the certificate under S.65(B)(4) and require the person to produce such certificate.

Having held the above, the Court has also, later in the judgment, recorded a direction expressed in more general terms: it has held that so long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the Judge at any stage, so that the information contained in electronic record can then be admitted, and relied upon in evidence.

The Court has further sounded a cautionary note for the Judge conducting the trial to exercise judicial discretion in admitting the certificate under S.65(B)(4) during later stages of the trial –particularly so in criminal trials, where evidence against the accused, if admitted during later stages of the proceedings, may prejudice the defence of the accused. The Court also noted that S.65(B) itself does not mention the stage at which the certificate under S.65(B)(4) is required to be furnished before the Court.

Directions to Internet Service providers (ISPs) and providers of mobile telephony (Cellular Companies):

The Court noted that the present relevant licensing terms oblige ISPs and Cellular Companies to preserve logs of internet usage and call records of users for a limited period of one year; and that this may lead to difficulties in situations where a certificate under S.65(B)(4) is sought to be procured from them post the expiry of this one-year period.

The Court noted that the Police or an individual (interested, or party to the litigation in any form) might fail to procure the record, or to procure the certificate, within this one-year period; a post-dated certificate issued then by the ISP or Cellular Company would in all probability render the data unverifiable –and place the accused in a perilous position, since if the accused wants to challenge the authenticity of the certificate, the underlying data itself may be missing.

To address this situation, the Court has issued general directions to ISPs and Cellular Companies to maintain call records and other relevant records for the concerned period in a segregated and secure manner, if a particular call or other record is seized during investigation in the said period. This arrangement would then permit the concerned parties to summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness.

The Court has made these directions applicable to all judicial proceedings, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act, 2000.

The facts of the particular case and the prolonged debate around S.65(B)(4):

The point in issue before the Court in this particular case of Arjun Panditrao was whether the Petitioner had submitted certain nomination documents to the appropriate Election Commission authorities within the stipulated time (i.e. on or before 3PM on 27.09.2014).

The Respondent had sought to produce CCTV camera footage in his challenge to the election of the Petitioner from the particular constituency. The Respondent wished to rely upon this footage to demonstrate that the Petitioner submitted his nomination documents after the stipulated time and not within it.

Despite several requests by the Respondent, a certificate under S.65(B)(4) was not provided to him by the appropriate authorities in charge of the CCTV cameras and footage. The question therefore arose of the admissibility of the CCTV footage in absence of the requisite certificate.

The High Court held that examination and cross-examination of the concerned officer, purportedly in charge of the CCTV cameras and footage, and who was the person who should have issued the certificate, when signed as a statement before the Court by this officer amounted to substantial compliance of the requirements of S.65(B)(4), and therefore the CCTV footage was admissible.

The 3-judge bench of the Apex Court while answering the reference in the matter, held that the certificate under S.65(B)(4) is a mandatory requirement, and accordingly rejected the ground of 'substantial compliance' made out in the reasoning of the High Court.

The Court however noted that despite all attempts made by the Respondent he could not procure the certificate from the concerned authorities –the Court thereby exempted the Respondent from the mandatory requirement of S.65(B)(4) in the particular facts of the case.

Further, the Court noted that apart from the evidence in the form of electronic record, other evidence too was relied upon by the High Court to arrive at the same conclusion. Accordingly, the Court dismissed the appeals and upheld the order of the High Court declaring the election of the Petitioner to be void.

It is noteworthy that the reasoning of the High Court pertaining to substantial compliance of the requirements of S.65(B)(4) serves to again bring into focus the core question around S.65(B)(4) –that is, whether in the absence of a certificate under S.65(B)(4), secondary evidence can still be led to prove the contents of an electronic record.

The judgment in Shafhi Mohammad relied upon a 3-judge bench judgment of the Apex Court in Tomaso Bruno4 to hold that the requirement of a certificate under S.65(B)(4) was not always mandatory and could be waived in the circumstances of particular cases where the ends of justice so required. The judgment in Tomaso Bruno had held that even in the absence of a certificate under S.65(B)(4), secondary evidence could still be led under S. 65 of the Indian Evidence Act, 1872 to prove the contents of an electronic record.

The Apex Court has now overruled both Shafhi Mohammad and Tomaso Bruno on the point, and has held that a certificate under S.65(B)(4) is a 'condition precedent' to the admissibility of electronic records in judicial proceedings. The Court has thus clarified the law and provided a detailed description of how it is intended to be worked –it is interesting though to note that in doing so it has declared the judgment of another co-ordinate 3-judge bench in Tomaso Bruno to be per incuriam.

Note: The author is an advocate at the Supreme Court of India, and a Partner with Factum Law.

Footnotes

1. Civil Appeal No(s). 20825-20826 of 2017

2. Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473

3. Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801

4. Tomaso Bruno and Anr. vs. State of Uttar Pradesh (2015) 7 SCC 178

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