8 Sep 2020 12:22 PM GMT
"Every new time will give its law" - Maxim Gorky, The New Lawyer's Wit and Wisdom In its quest to emplace the judicial discipline relating to admissibility of any electronic record and to obviate the controversies created by the previous judgments as to whether certificate under Section of the 65B of the Indian Evidence Act, 1872 ('the said Act') is a condition...
"Every new time will give its law"
- Maxim Gorky, The New Lawyer's Wit and Wisdom
In its quest to emplace the judicial discipline relating to admissibility of any electronic record and to obviate the controversies created by the previous judgments as to whether certificate under Section of the 65B of the Indian Evidence Act, 1872 ('the said Act') is a condition precedent for admissibility of any Secondary electronic record and at what stage the same may be produced; a Three Member Bench of the Hon'ble Supreme Court of India, in its latest referendum judgment namely, Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors, decided on July 14, 2020 has hand down, inter alia, as follows:-
a) Anvar P.V. v. P.K. Basheer & Ors [(2014) 10 SCC 473] is the authoritative law of the land on Section 65B of the said Act and therefore certificate required under Section 65B(4) is a condition precedent to the admissibility of any Secondary electronic record;
b) Earlier Three Judge Bench decision of Tomaso Bruno v. State of U.P. [(2015) 7 SCC 178] on Section 65B of the said Act, having not considered Anvar P.V. (supra) being per incuriam, does not lay down the law correctly;
c) Earlier Division Bench decision rendered in Shafhi Mohammad v. State of Himachal Pradesh, reported in (2018) 2 SCC 801 and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311 do not lay down the law correctly and are therefore overruled;
d) The decision of Madras High Court in K. Ramajyam v. Inspector of Police [(2016) Crl. LJ 1542], which states that evidence aliunde can be given through a person who was in-charge of a computer device in the place of the requisite certificate under Section 65B(4) of the said Act is also an incorrect statement of the law and is, accordingly, overruled.
e) No certificate under Section 65B(4) of the said Act is required if the original document (electronic record) itself is produced and the same can be done by the owner of a laptop, computer, 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;
f) In cases where the computer happens to be a part of a computer system or computer network and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).
Before moving further, let us first understand as to what were the ratio of the earlier judgments relating to Section 65B vis a vis electronic evidence, which have been dealt with in Arjun Panditrao (supra):
P.K. Basheer & Ors
(2014) 10 SCC 473
Section 65A & 65B is a complete Code. A certificate required under Section 65B(4) is a condition precedent to the admissibility of any Secondary electronic record. If an electronic record is used as primary evidence under Section 62 of the said Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the said Act.
State of U.P.
(2015) 7 SCC 178
Secondary evidence of the contents of a document can also be led under Section 65 of the said Act to make CCTV footage admissible
Paras Jain v.
State of Rajasthan
2015 SCC OnLine Raj 8331
Rajasthan High Court
Certificate as required under Section 65-B can be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet or produced but not in proper format. It is curable irregularity.
2015 SCC OnLine Del 13647
Delhi High Court
Requisite certificate need not necessarily be given at the time of tendering of evidence but could be at a subsequent stage of the proceedings.
Inspector of Police
(2016) Crl. LJ 1542
Madras High Court
Evidence aliunde can be given through a person who was in-charge of a computer device in the place of the requisite certificate under Section 65B(4) of the said Act
Vikram Singh & Anr.
State of Punjab
(2017) 8 SCC 518
Where primary evidence in electronic form has been produced, no certificate under Section 65B would be necessary
Shafhi Mohammad v.
State of HP
(2018) 2 SCC 801
A party who is not in possession of device from which the document is produced, cannot be required to produce certificate under Section 65-B(4) of the said Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies.
State of Karnataka
(2019) 7 SCC 515
The need for production of a certificate under Section 65-B(4) would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise.
Positivity of Arjun Panditrao
No doubt Arjun Panditrao (supra) is an asseveration of the Apex Court on Section 65B of the said Act setting in quietus all the controversies in law relating to production of certificate under Section 65B in respect of an electronic record. The judgment is imbibed with the erudite, analytical mind, expertise, interpretative skills of the Hon'ble Judges. In giving shape to the judgment, the Apex Court has not only thoroughly scrutinized and analyzed the relevant provisions of the Information Technology Act, 2002 as amended by 2008 Act; Code of Criminal Procedure, 1973; Civil Procedure Code, 1908; the said Act but also has made hair spitting survey of the origin of Section 65B and dealt with relevant branches of law relating to electronic evidence prevailing in UK, USA and Canada. Some of the ingenious measures giving strength and positivity to the judgment are as follows:-
A. Paving the way for Trial Courts to secure 65B certificate:
Through this judgment, the Apex Court for the first time has devised a pragmatic mechanism for the Trial Courts to secure Certificate under Section 65B in respect of any Secondary electronic record from the person(s) in control of such original electronic record by taking resort to Sections 91/ 311/173(8)/231 of the Code of Criminal Procedure, 1973 ('Cr PC') and Order XVI of the Civil Procedure Code, 1908 ('C P C') and Section 165 of the said Act.
B. Utilization of Legal Maxims of Equity in balancing the rights of parties and powers of Courts while securing certificate:
This judgment has also semantically analyzed and applied two well settled Maxims of Equity, namely, i) actus curiae neminem gravabit (an act of the Court shall prejudice no man) and ii) lex non cogit ad impossibilia (the law does not compel a man to do that which he cannot possibly perform) to set forth a range for the Trial Courts to exercise their powers in securing certificate under Section 65B in relation to any Secondary electronic record. The object was to create a balance between the rights of parties and the powers of the Court while procuring such certificate.
C. Directions for maintenance and management of CDRs:
This judgment to a great extent, has referred to and discussed various Clauses and License Conditions of the Department of Telecommunications and issued general directions upon Cellular Companies and Internet Service Providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the said Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Such Directions are made applicable for criminal trials, till issuance of appropriate directions under applicable licenses, or under Section 67C of the Information Technology Act, 2002. The judgment has also laid down a process for the concerned parties to summon such CDRs and other records at the stage of defence evidence or during cross-examination of a particular witness.
D. Underscoring statutory recognition of Draft Rules for Reception, Retrieval, Authentication and Preservation of Electronic Records :
This judgment has, in extenso, delved into the Conference of the Chief Justices of the High Courts, chaired by the Chief Justice of India held on 23 April 2016 followed by formation of a five-Judge Committee constituted on 28 July, 2018 and Final Report of the said Committee given in November 2018 containing Draft Rules for the Reception, Retrieval, Authentication and Preservation of Electronic Records and has emphasized for giving them statutory force, to guide Courts with regard to preservation and retrieval of electronic evidence.
India is presently holding 3rd position in the world in terms of highest rate of cybercrime (as per a recent Report released by USA's Internet Crime Complaint Centre of FBI) and second largest online market and internet user in the world, ranked only behind China (as per Report dated July 07, 2020 published by Statista). As students of law and giving highest reverence to the judgment, may we now put in our thoughts over the probable gray areas of the judgment and their implications:
A. Whether S. 65B is a complete Code in itself:
The entire foundation of Arjun Panditrao (supra) and Anvar P.V. (supra) is based on the supposition that "The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield."
Let us analyze how far this proposition is true and how far Section 65B is a complete Code guiding electronic evidence.
i) Section 65B itself contemplate "electronic record" as "document" and then make it admissible:
If we follow the plain language of Section 65B, then at first, it considers 'any information contained in an electronic record' (in whatever format) produced by a computer as 'document' if conditions mentioned in Sub Secs (2), (3) are satisfied. If the Legislatures wanted to assign a different class to 'electronic record', then there was no requirement for deeming such 'information contained in electronic record' as 'document' and thereafter admit it into evidence on fulfillment of certain conditions. So, the intention of legislature might be to contemplate 'any information contained in electronic record' as a species of the genre 'document'.
ii) Doctrine of "intelligible differentia" vis a vis Section 65B:
If we consider Section 65B of the said Act to be a complete Code within itself, then it must travel through the test of doctrine of "intelligible differentia" deeming "electronic record" and "document" as two distinct and different classes. To pass that test, Section 65B must exhaustively deal with all kinds of "electronic record" – primary and secondary as well as their mode and manner of admissibility, relevancy and proof like Sections 61 to 73 achieve in relation to "document". But Section 65B merely lays down a Rule of admissibility of electronic record. This Section also cannot independently deal with all kinds of eventualities in relation to electronic record unlike Sections 61 to 73 and other provisions of the said Act do in relation to 'documentary evidence'. It also fails to regulate the 'source' and 'authenticity' of any electronic record, which are the primary criterion for proving an electronic record. Section 65B further fails to define or deal with 'public electronic record' unlike Sections 63, 74, 76, 77 and 78 of the said Act. The latter provision provisions deal with "public document", quite comprehensively.
iii) Whether Section 65B is Alma Mater regarding admissibility of all electronic record:
Section 65B even cannot properly deal with admissibility of all kind of electronic record. An Illustration may make this clear.
A person, who is interested to obtain his digital signature to authenticate his electronic records, can easily apply for the same before any licensed Certifying Authority (generally Third Party Vendors), who has been granted license by the Ministry of Corporate Affairs, Govt. of India to issue a Digital Signature Certificate (DSC) under Section 24 of the Information Technology Act, 2000. Such Certifying Authority after completion of procedural formalities, grants such DSC (containing the Public Key that can be used to validate the Private Key that is associated with a digital signature) for a limited period to the applicant. In simple, DSC is digital equivalent (in electronic format) of physical or paper certificate. Such DSC can be presented electronically to prove one's identity, to access information or services on the internet or to sign certain documents electronically. This DSC is provided to the applicant/signature holder in PEN Drive and every time the owner has to give access to the Pen Drive to use his digital signature in any electronic record. This Pen Drive is the primary electronic evidence and as per Arjun Panditrao (supra) or Section 65-B, only production of that original Pen Drive before the Court should suffice to prove the authenticity of the signature of that person and he can prove the same by examining himself on dock. If Section 65B is the sole Section dealing with its admissibility, then Section 73A would not have been incorporated in the said Act to deal with the manner of proof of verification of such DSC. To prove the fact that the digital signature is that of the person by whom it purports to have been affixed, Section 65A has to give a way to Section 73A. If the production of DSC by the signature owner under Section 65B would have been final, then Court could not be vested with the power to direct the Controller or Certifying Authority to produce the DSC or direct any other person to apply the public key listed in DSC to verify the digital signature purported to have been affixed by that person. Thus Section 65B alone even cannot regulate the admissibility of all kinds of electronic record. Section 73A is a clear example of it.
B. Relevant provisions regarding Electronic Record:
In the thought process of making of the judgment, only Sections 3, 22A, 45A, 59, 65A, 65B of the said Act and various relevant Sections of the Information Technology Act, 2000 have been considered and analysed by the Apex Court. However many a Sections of the said Act dealing with electronic records including Sections 17, 34, 39, 47A, 67A, 73A, 81A, 85A, 85B, 85C, 88A, 90A, 131 have not at all been taken into consideration. If those Sections, which were inserted in the said Act by way of amendment (after coming into effect of the Information Technology Act) were considered and analyzed in the judgment, then probably the intention of the Legislature would have been more clearer. A conjoint reading of these Sections [not considered by Arjun Panditrao (supra)] may probably throw light upon us to come to the conclusion that the Legislatures had enacted these Sections in order to breach the gap between "document" and "electronic record" with regard to their relevancy, how much of its contents come into the arena of proof, mode and manner of proof, presumptive value etc. If Section 65B would have been a complete Code governing electronic records then these Sections would not have been incorporated by the Legislature. It may give us an impression that Section 65B not in isolation but together with these Sections, can form a Code to govern "electronic record".
C. Can Section 65B operate independently barring Section 63/65 to deal with Secondary Electronic Record:
Secondary evidence of an electronic record covers a large field in our modern era. With the aid of advanced technology, we can very easily create, copy, store and preserve authenticated copies of any electronic record in various formats. Today, most of the original electronic records are stored in Cloud Storage like Google Drive, One Drive etc. (even user data in various social medias like Facebook, Twitter etc are stored in Cloud) and the servers of those Cloud Storage are kept in different countries to protect data from physical damage. In case any such electronic data, stored in Cloud, is required to be produced as evidence, then as per Arjun Panditrao (supra) either original hard drive stored in Cloud Device has to be produced (which is quite difficult if not impossible) or any authenticated copy of the data can be produced as evidence backed by certificate under Section 65B. Arjun Panditrao (supra) has only made it clear that the original computer or device wherein the electronic record is created or stored is primary evidence. But as neither Section 65B nor Arjun Panditrao (supra) defines or lays down any yardstick for 'Secondary electronic record', these huge class of copies are left into an uncertain arena of admissibility. So to decide as to whether any electronic record is primary or secondary, we have to take resort to Section 63 of the said Act. It clearly reflects that the Legislatures have intentionally not defined and explained "Secondary electronic record" thinking that Sections 63 and 65 are already there to take good care of them in relation to electronic evidence. So again without taking the help of Sections 63 and 65 of the said Act, we can not possibly apply Section 65B to prove any electronic record as Secondary evidence.
D. Whether [email protected] v. State of Haryana [AIR 2017 SC 3441] has been considered in proper perspective in Arjun Panditrao(supra):
Following Anvar P.V. (supra) the Apex Court in Arjun Panditrao (supra) has held that pleas regarding admissibility of electronic records on grounds of non production of certificate under Section 65-B, cannot be entertained before an Appellate Court, if an objection had not been given in Trial Court. According to Apex Court the mode or method of proof is procedural and objections, if not taken at trial, cannot be permitted at appellate stage. This decision was based on the finding that the requirements of Section 65B merely pertain to issues of mode of proof and not inherent admissibility of the electronic record. But Arjun Panditrao (supra) has held that mandatory certificate under Section 65B is a condition precedent and goes to the very root of admissibility of any Secondary electronic evidence. Since Arjun Panditrao (supra) has not overruled Sonu alias Amar (supra), the ratio of that judgment will follow. As Arjun Panditrao (supra) has made it clear that it is the duty of the Trial Court to ensure production of certificate in some cases, the adversary would be precluded in raising their objection in those cases, creating serious prejudice to their rights in appellate stage.
Now, if in any given case, in spite of best of endeavour of the parties as well as Court, if the requisite certificate under Section 65B cannot be produced, then by virtue of Arjun Panditrao (supra) such certificate would be excused and the Secondary electronic record would probably be admitted in evidence without any certificate. So the challenge of admissibility in respect of that Secondary electronic record would never be possible to be raised by the adversary party even in appellate stage.
E. Uncertainty of Public Electronic Record:
In modern days, most of the public documents and public records like records of Registrar of Companies, records of Income Tax and Sales Tax Department, records of Postal Authority, orders of Courts of Law and Tribunals etc. are maintained in electronic form in public domain. If a person having right to inspect such public documents and obtain a certified copy of such documents in physical forms, then he cannot be denied such right of inspection and get copies of such public documents available in electronic form as well. In fact, advancement of science and technology has ensured these rights of inspection at our doorsteps and made it easy to get copies of such public documents in many sectors by adhering various authenticated means but if our Laws (whether Legislated or Judge-Made) do not provide an easy and simple method to admit these copies of public documents as electronic evidence in Courts or Tribunals, then such Laws will fail to cope up with the need of society and will be fruitless. But neither Section 65-B nor the decisions of Arjun Panditrao(supra) or Anvar P.V.(supra) do ensure such burning need of the society and to withstand the test of time.
F. What if Certificate u/s 65B is false:
Section 65B does not provide any checks and balance to ensure genuinity of a certificate. Anybody pretending himself to be the 'person occupying a responsible position in relation to operation of the relevant device or the management of the relevant activities' can actually sign and execute such certificate. There is no pointer prescribed in Section 65B to connect the electronic record and the originator of the electronic record. There is also nothing in Section 65B(4) to ensure the source and authenticity of the Secondary electronic record.
Even otherwise, since a certificate under Section 65-B is only in the form of a declaration and not in the form of an affidavit or affirmation, if any person falsely makes such declaration without actually adhering to the procedures contained in the letters of Section 65B(2) or (3) of (4), Court will be obliged to accept such certificate as true and admit any Secondary electronic record as evidence on the strength of such certificate. Since furnishing of a false certificate is not punishable offence, anyone can take the Court in a ride with him on the basis of such false certificate.
G. Section 91 Cr PC vis a vis An Accused vis a vis Section 131 of Evidence Act: A Conundrum
The Hon'ble Supreme Court in Anjun Panditrao (supra) has discussed in details about application of Section 91 of Cr P C for procurement of the certificate from a third person in case the same was not filed with the FIR/complaint. Though the provision under Section 91 Cr P C can definitely be invoked in such a situation, however it cannot be lost sight of the fact that in a given case 'electronic record' and the computer in question may be in the possession and/or with the custody of an accused person. In such a contingency, the provision under Section 91 Cr P C will have no application inasmuch as an accused person cannot be compelled to disclose documents which are incriminatory and based on his personal knowledge. Provision under Section 91 of Cr P C, in its true interpretation, cannot envisage an accused person. In this regard, it is not out of place to mention that the Constitution Bench of the Supreme Court of India in 'State of Gujrat vs. Shyamlal Mohanlal Choksi' (AIR 1965 SC 1251) by interpreting Section 94 of Code of Criminal Procedure, 1898 (which is pari materia to Section 91 of Cr P C) has unanimously held that the said provision in its true interpretation does not apply to an accused.
"30. It seems to us that in view of this background the Legislature, if it were minded to make S. 94 applicable to an accused person, would have said so in specific words. It is true that the words of S. 94 are wide enough to include an accused person but it is well recognised that in some cases a limitation may be put on the construction of the wide terms of a statute (vide Craies on Statute Law, p. 177). Again it is a rule as to the limitation of the meaning of general words used in a statute that they are to be, if possible, construed as not to alter the common law (vide Craies on Statute Law p. 187).
31. There is one other consideration which is important. Art. 20(3) has been construed by this Court in Kalu Oghad's case, (1962) 3 SCR 10: (AIR 96l SC 1808), to mean that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge: S. 94, Criminal Procedure Code, permits the production of all documents including the above-mentioned class of documents. If S. 94 is construed to include an accused person, some unfortunate consequences, follow. Suppose a police officer --- and here it is necessary to emphasize that the police officer has the same powers as a Court-directs an accused to attend and produce or produce a document. According to the accused, he cannot be compelled to produce this document under Art. 20(3) of the Constitution. What is he to do? If he refuses to produce it before the Police Officer, he would be faced with a prosecution under S. 175, Indian Penal Code, and in this prosecution he could not contend that he was not legally bound to produce it because the order to produce is valid order if S. 94 applies to an accused person. This becomes clearer if the language of S. 175 is compared with the language employed in S. 485, Cr. P. C. Under the latter Section a reasonable excuse for refusing to produce is a good defence. If he takes the document and objects to its production, there is no machinery provided or the police to hold a preliminary enquiry. The Police Officer could well say that on the terms of the Section he was not bound to listen to the accused or his counsel. Even if he were minded to listen, would he take evidence and hear arguments to determine whether the production of the document is prohibited by Art. 20(3). At any rate, his decision would be final under the Code for no appeal or revision would lie against his order. Thus it seems to us that if we construe S. 94 to include an accused person, this construction is likely to lead to grave hardship for the accused and make investigation unfair to him.
33. Keeping the above considerations in mind, let us look at the terms of the Section. It will be noticed that the language is general, and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words attend and produce' are rather inept to cover the case of an accused person. It would be an odd procedure for a Court to issue a summons to an accused person present in Court 'to attend and produce' a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to attend and produce a document.
40. Therefore, agreeing with the High Court, we hold that S. 94 on its true construction, does not apply to an accused person….."
Even by virtue of Section 165 of the said Act, the court cannot compel a party to produce a document which is constitutionally protected inasmuch as Section 165 of the said Act cannot override Part III of the Constitution of India. As it is not open to a court to compel a party to make a particular kind of pleading or to amend its pleading or to examine a particular witness while, it is duty of a court of law not only to do justice but to ensure that the justice is done and it should bear in mind that it should act only according to law and not otherwise. (Vide The Municipal Corporation of Greater Bombay vs. Lala Pancham and Others. AIR 1965 SC 1008. At Page 1014)
In view of the aforesaid pronouncement, it can be said that the mechanism of Section 91 Cr. PC cannot be applied at all, either directly or indirectly, in order to obtain certificate and/or original computer when the same is within the custody of an accused.
Since an accused cannot be compelled through the process envisaged under Section 91 of Cr P C, a proceeding under Section 175 of the Indian Penal Code ('IPC') for omission to produce document as sought for cannot be instituted against an accused as is evident from the language of Section 175 of the I P C. The charge under Section 175 I P C is premised that the person called upon to produce document or electronic record has to be person 'being legally bound to deliver the same'. Since an accused is not 'legally bound' to produce the document, charge under Section 175 of IPC cannot slapped against an accused. (Vide 'Iswar Chandra Ghosal Vs. Imperor', (1908) 12 Cal WN 1016).
On the same logic, the charge under Section 204 I P C which penalizes destruction of document and/or electronic record in order to prevent its production as evidence, cannot be slapped against an accused.
It can further be added that in terms of Section 131 of the said Act, even where the document and/or electronic record of an accused is under the control of a third person, the latter cannot be compelled to produce the same by court process. According to Section 131 of the said Act, the extent of the obligation of a person having interest in the document is the determining issue. In case the said person is not compellable to give up the custody of the document, then the custodian of the document is also not compellable. Way back in 1961, the Hon'ble Bombay High Court in 'The State of Maharashtra vs. Nagpur Electric Light and Power Co. Ltd. and Another' (AIR 1961 BOM 242), had applied Section 131 of the said Act qua a company against which proceeding was pending. It was held that since the company being an accused cannot be reached by virtue of Article 20(3) of Constitution of India to produce incriminating document, the company can therefore, object to its own employee producing the document without the consent of the company under Section 131 of the said act.
In the aforesaid backdrop, it is therefore evident that the modalities under Section 91 Cr P C cannot be invoked in a situation where the document is either in the custody of the accused or in the custody of a third person.
Analyzing form aforesaid angle, it would be evident that the consequence of non-availability of the document in aforesaid contingencies which may often surface out in a criminal prosecution, was not addressed by the Hon'ble Supreme Court of India in Arjun Panditrao (supra).
H. Compellable Modes of Recovery of certificate:
The Hon'ble Supreme Court had discussed the provision under Section 91 Cr P C without there being any reference to other compellable mode of recoveries such as Search Warrant under Section 93 Cr. PC, etc. The Supreme Court has merely taken refuge to the ancient maxim 'Lex Non Cogit ad impossibilia' (the law does not compel a man to do which he cannot possibly perform). In a given case for indifference of a third party the certificate under Section 64 B of the said Act, may not be obtained by a trial court despite its best effort under Section 91 of Cr P C. In such a case, if only on such count the certification is dispensed with as apparently held by the Hon'ble Supreme Court, the consequence would be deleterious since the same will open flood gate whereby Secondary evidence will be accepted by a court of law. Such receipt of Secondary evidence is not only contrary to the Best Evidence Rule but may in appropriate cases affect the interest of either of the parties. Since from the structure of Cr P C (vide Chapter VI/Section 90), it would be evident that harsher mechanism for procuring evidence is already conceptualized by the Legislature, there is no reason not for not resorting to the same. Since in Arjun Panditrao (supra) the other compellable methods were not dealt with, therefore, trial court may abort the other mechanism as envisaged under Cr P C after invocation of Section 91 Cr. PC and its failure to obtain the electronic record, and may admit the Secondary evidence which eventuality tinker upon the fundamental right of fair trial under Article 21 of the Constitution of India of a litigant be it an accused or complainant/informant.
I. Concurring view, the Law of Future:
As indicated in Arjun Panditrao (supra), sub-Sections (2) to (5) of Section 65B of the said Act are reproduction of sub-Sections (2) to (5) of Section 5 of the Civil Evidence Act, 1968 (UK), with minor changes. These Sections have been repealed by the Civil Evidence Act of 1995 (UK) and is no longer applicable in UK or European Union but we are still carrying out British Legacy.
The concurring opinion of V. Ramasubramanian J. in Arjun Panditrao (supra) has vigorously dealt with Legislative developments in U.S.A., U.K. and Canada on the admissibility of electronic records and finally came to the conclusion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine−tuned their legislations. Therefore, it is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu to Anvar P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad. This signifies a lot.
Unlike USA, UK, Canada and other developed countries of the World, in India the Information Technology Act, 2000 is still the standalone legislation to give a fillip to the growth of electronic based transactions in the context of widest possible use of information technology worldwide. Whatever amendments have been made in Indian Penal Code, 1860; the Banker's Books Evidence Act, 1891; the Reserve Bank of India Act, 1934 and the said Act are pursuant to IT Act. Sec 65B is also a product of IT Act.
Let us not make two bones of it that Technology is always a double-edged sword and can be used for both the purposes i.e. good or bad. Steganography, Trojan Horse, Scavenging (and even Dos or DDos) are all technologies and per se not crimes, but falling into the wrong hands with an illicit intent who are out to exploit them or misuse them, those technologies can come into the array of cyber-crime and that is why those are punishable offences in some of the countries but not in India. Our IT Act is not good enough to combat the 21st Century Cyber Security Threats like Deepfakes, Synthetic Identities, AI-powered Cyberattacks, Disinformation in social media, Cyberattacks on Iot and lot more.
Now keeping in mind that our country is the 2nd in position in terms of usage of internet and 3rd in position in terms of cybercrime threats, it is time to take a lead in making new laws to ensure that technology do not betray us. A better law would not only provide us better protection from modern day cyber threats but would also introduce effective, better, easy and scientific Rule of Evidence into our Evidence Act by way of amendments to do away with the strict rule of admissibility of Secondary electronic evidence and eliminate Section 65-B. Otherwise, the Law will not be able to keep pace with the society.
J. What can be the substitute of Section 65B Certification:
According to our humble opinion, on scientific basis, 'Metadata' and 'Hash Value' authentication can be a better substitute of Section 65B. Metadata is 'data about data'. It is generated by virtually everyway, we communicate in our 21st Century life. It can be said to be the scientific footprint/genome of every single electronic record/communication in whatever form it is e.g. data file, image, video, message, call record etc. From metadata, even a detailed picture of anyone's life including one's interactions, behavior, tendencies etc. can be ascertained.
Every electronic record which is created/modified/stored by any computer, laptop, mobile or other digital devices like digital camera, scanner, e-reader, flash drive etc. maintains and stores metadata containing various attributes/information relating to that electronic record. For example, in respect of a picture taken by a mobile phone or digital camera, the metadata would consist with the attributions like the name of the image, camera brand and model, aperture, shutter speed, ISO No, focal depth, dots per inch, the date and time when the image was created, GPS location of taking of the picture, keywords related to the image and so on. Likewise in respect of a word file, the metadata would consist with the attributions like file name, author's name, name of the application through which it was created, date and time of creation, date last printed, date last saved, last modified, last accesed, file size, counts of page/paragraph/line/character, hash value and so on. Country like Australia has already brought amendments into their telecommunication laws in relation to metadata.
On the other hand, Hash Value can be contemplated as fingerprint of files or digital data. The contents of a file are processed through a cryptographic algorithm and a unique numerical value, called Hash Value. Hash Value is produced to identify the contents of the file. If the contents are modified in any way, the value of the Hash will also be changed. This Hash Value Authentication thus can ensure the authenticity of the contents of any Secondary evidence generated/copied from any original electronic record.
So whenever any Secondary electronic record is intended to be used as Secondary evidence for the reason that the original record/device is missing or forms part of a computer system or network which becomes impossible to be brought before the Court or electronic data is stored in a cloud storage etc etc, then instead of producing certificate under Section 65B, the metadata authentication and hash value authentication can be asked for by the Court to authenticate the same. This would be more scientific than mere parroting the Victorian language of Section 65B by the producer of the certificate. Not only it would minimize the time and energy because metadata and hash value are easily available but also would ensure reliability of the copy intended to be produced before the Court. And this is only possible when appropriate legislation is brought into effect by eliminating the rigors of Section 65-B.
Law declared in Arjun Panditrao (supra) is a step forward in creating alarm for evolution of a suitable law in India to militate the rift between Section 65B of the said Act and the Society and if our Legislature doesn't immediately step in, it is the citizens of India who are going to pay heavy price for it in future.