SC brings consistency to electronic evidence

By Karthik Somasundram and Shreya Gupta,Bharucha & Partners

In the case of Anvar PV v PK Basheer & Ors, the Supreme Court ruled that a certificate under section 65B(4) of the Indian Evidence Act, 1872 (act), was mandatory to prove an electronic document. Subsequently, the Supreme Court in Shafhi Mohammad v The State of Himachal Pradesh ruled that the requirement of certificate could be waived in the interest of justice. In the recent case of Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal and Ors, the Supreme Court delivered a judgment resolving the contradictory authorities and clarifying the law.

Karthik Somasundram,Bharucha & Partners,Electronic evidence
Karthik Somasundram
Bharucha & Partners

The appellant was elected to the Maharashtra State Legislative Assembly. The respondent challenged the result on the grounds that the nomination form had not been filed in time. The returning officer rejected the complaint and that decision was challenged in the Bombay High Court. That court requisitioned original video recordings and the certificates required under section 65B of the act. The election commission produced a copy of the video recordings on CDs, but not the certificates.

In the absence of the certificates, the high court relied on the testimony of the returning officer to find substantial compliance of section 65B, admitted the CDs into evidence, and declared the election of the appellant void.

Shreya Gupta,Bharucha & Partners,Electronic evidence
Shreya Gupta
Managing associate
Bharucha & Partners

The Supreme Court observed that sections 65A and 65B relate to proof of information contained in electronic records. Section 65B differentiates between an original document contained in the computer itself, that is primary evidence, and a deemed document which is the computer output of the original document and is secondary evidence. Such secondary evidence is admissible in evidence without further proof or production of any original, provided the conditions stipulated in section 65B in relation to information and the computer are met.

In Anvar PV, the court overruled the judgement in State (NCT of Delhi) v Navjot Sandhu holding that in respect of electronic records, secondary evidence in the form of verbal testimony under sections 63 and 65 of the act is not admissible. Sections 65A and 65B constitute a complete code in respect of electronic documents, and secondary evidence of electronic record cannot be admitted unless the requirements of section 65B are satisfied. The court ruled that original CDs in the case would constitute primary evidence. Copies of the original CDs could be admitted as secondary evidence only if the certification under section 65B were available and not on the basis of replacement oral evidence.

The Supreme Court in Vikram Singh v The State Of Punjab ruled that an original cassette containing recording of a ransom call was primary evidence that did not require a certificate under section 65B, and in Tomaso Bruno & Anr v State of UP, the Supreme Court ruled that oral secondary evidence can be led in respect of electronic records. However, the court in Tomaso Bruno did not cite Anvar PV and ignored the requirements in section 65B(4) for adducing secondary evidence in respect of electronic records. The court in Arjun Panditrao Khotkar overruled this judgment. The court in Shafhi Mohammad relied on Tomaso Bruno and ruled that sections 65A and 65B were not a complete code by themselves. The requirements for proving an electronic document through secondary evidence could be relaxed in the interest of justice where the electronic document is produced by a party not in possession of the original device.

In setting aside the judgment in Shafhi Mohammad as contrary to the law laid down in Anvar PV, the court also found fault with the underlying reasoning for relaxing the requirements of section 65B. The difficulty of producing a certificate by a party not in possession of the electronic device can be overcome by applying to a court for production orders.

The court held that oral evidence cannot replace the requirement of a certificate under section 65B(4). Any other ruling would render the provision otiose. The court further ruled that while the requirement of section 64(B) was mandatory, a party should be relieved of that obligation if they had done everything possible to obtain the certificate from a third party. The stage at which the certificate must be furnished to the court is not prescribed. However, if the certificate cannot be procured despite efforts by a party, the trial court should summon those in possession of the device to produce the certificate during the trial itself. As evidence has to be supplied prior to the commencement of a criminal trial, provision should be made to avoid prejudicing the accused by producing evidence only at trial.

Karthik Somasundram is a partner and Shreya Gupta is a managing associate at Bharucha & Partners.

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