Recent Judgement Of The Supreme Court In Arjun Khotkar: A Missed Opportunity To Revisit 65B

Yuvraj P. Narvankar

20 July 2020 3:59 PM GMT

  • Recent Judgement Of The Supreme Court In Arjun Khotkar: A Missed Opportunity To Revisit 65B

    Finally, the reference to the larger Bench in Arjun Khotkar v. Kailash Gorantyal[1] was answered by the Three Judge Bench on 14th July 2020 apparently halting the swinging pendulum swinging between P V Anvar[2], Tomso Bruno[3] and Shafhi Mohammad[4]. The Judgment was eagerly awaited not only for judicial certainty but to decide course of judicial treatment of the electronic evidence...

    Finally, the reference to the larger Bench in Arjun Khotkar v. Kailash Gorantyal[1] was answered by the Three Judge Bench on 14th July 2020 apparently halting the swinging pendulum swinging between P V Anvar[2], Tomso Bruno[3] and Shafhi Mohammad[4]. The Judgment was eagerly awaited not only for judicial certainty but to decide course of judicial treatment of the electronic evidence in the digital era to come. Though this Judgments obviates any need to revisit the verdict in Anvar PV, it leaves many issues unattended.

    This whole saga around 65B of the Indian Evidence Act, 1872 began in Navjot Sandhu[5] where the Supreme Court overlooked non obstante clause which in fact gave a clear overriding effect to section 65B over other sections, when evidence was digital evidence. In doing so, it imported the provisions of section 65 to hold that since the original servers are not easily movable one of the conditions of section 65 for adducing secondary evidecne stands complied and hence secondary evidence in the form of printouts can be adduced. It then also imported provisions of section 63 to hold that the printouts are copies made by mechanical process and hence constitute secondary evidence and therefore can be adduced in evidence. By invoking these two sections, which were meant for paper documents when enacted, the Supreme Court bypassed the entire set of special procedure laid down by scheme of section 65A and section 65B together, making the same completely optional. This view held the field for almost a decade till the three Judges Bench of the Supreme Court in Anvar PV overruled Navjot Sandhu and held 65B to be a complete code of the subject and compliance with 65B mandatory. This was again diluted substantially in in Shafhi Mohammad by two judges' bench allowing exemption from compliance with 65B in appropriate and just cases. This view of the Division Bench as against the three judges bench view in Anvar PV not only aggravated the uncertainty already prevailing, but also raised the questions of judicial propriety. The extreme rigidity shown in Anvar PV in favour of 65B was certainly a cause of worry but so also the extreme laxity shown in Tomso Bruno and Shafhi Mohd. rendering 65B virtually otiose. For the legal fraternity caught in these two extremes, the pendulum was constantly swinging and hence the reference by the Division Bench to a larger bench in the case of Arjun Khotkar[6] certainly came as a relief and heightened expectations for greater clarity. However larger bench reference judgement in Arjun Khotkar, poses even graver questions than it seeks to resolve.

    In this judgement, Supreme Court has again underlined the distinction between primary and secondary evidence and held that the primary evidence (i.e. the original hard drive or CD) would not need certification of 65B, effectively liberating it from its clutches and it is only the copy of such original electronic evidence (secondary evidence, so as to say) would need the compliance with Section 65B. Unfortunately, though the judgement extensively refers to the international legislations, it fails to refer to technical aspects of any electronic data, which, in fact, should have been the centre of discussion.

    Any technical literature will testify that there does not exist anything as a primary and secondary in the word of digital evidence and in case of any computer. Neither the data that is fed into the computer nor its output is ever in readable format. Therefore 'original electronic data' is never readable. It is always in binary (which is unreadable for human eye) format. It is only through data processing and conversion; it is converted into readable format. So, what one sees with his eyes on any screen is always the secondary rendition of the original. In other word, the original of the electronic data can never be seen unless its converted into secondary. It is the computer which makes the input and output readable for the user or human eye. Most importantly any computer information or record can be undetectably edited or copied and is so edited or copied on networks without any ability of the user to even know that its edited or copied. Therefore, the concept of 'original' is completely alien to the electronic world.

    This concept of 'original' strictly belongs to the world of 'paper documents'. In fact, it is to get rid of all these concepts revolving around paper documents that the section 65B begins with Non obstante clause. It is a technical misnomer to say that if the original Hard Drive or CD is produced, it constitutes primary evidence and hence it does not require the certification. Any computer output is merely a 'representation' of primary evidence which lies in binary format. Therefore, every single Hard Drive or CD falls within ambit of Section 65B and requires its compliance. Otherwise the word 'notwithstanding' would be redundant and one brings in the same logic of Navjot Sandhu through backdoor by importing concepts of 'primary' and 'secondary' evidence in the world of digital evidecne. Even the language used by Section 65B supports this interpretation. E.g. One of the condition of Section 65B certificate is that "during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer".

    Had the section been really concerned only about mere computer printout or CD, there was no need to mention about the regularity of input. Even three other conditions mentioned in 65B(2), which are required to be compulsorily complied with, can be attributes of only original electronic record. In fact, first reading of Section 65B(4) also indicates that the certificate should deal with the electronic record which is 'produced' by the computer or manner of its 'production' etc. The word 'produced' does not mean mere 'printout' or 'writing or copying of CD'. The CCTV footage or biometric record would also be electronic record 'produced' by computer since it is always 'system generated'. Any information contained on any hard drive would be the one which is recorded or stored by the computer. There is no question of any primary or secondary version. This approach is universally adopted in treatment of the Electronic Evidence. In fact the opening words of section 65B provide "any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer… shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings." Therefore, even if someone produces the electronic record in the form of an original hard drive, it will amount to information contained in an electronic record which is stored in magnetic media (as defined above) and would inevitably require compliance of the conditions mentioned in the section. If someone produces CD, it will amount to information contained in an electronic record which is recorded in optical media and would still attract Section 65B and its conditions.

    A simple illustration would indicate the fallacy of this distinction between primary and secondary. If certain computer or machine is receiving incorrect input, then the output is also bound to be incorrect. This, in the technical language is known as the principal of 'Garbage in Garbage out'. In such an eventuality the correctness of the original record itself has to be scrutinized and certified. And presently it can be done by complying with Section 65B since there does not exist any other provision to authenticate electronic evidence. This is precisely the reason that 65B uses the words 'any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer.

    The interpretation by the reference bench in Arjun Khotkar's case may open Pandora's Box since all the digital evidence would be straightaway admitted into evidence without compliance with 65B, moment one gets the original device to the court, though the original device may be full of errors and software bugs.

    The second major anomaly in the verdict in Arjun Khotkar's case seems to be blank withdrawal of the special privilege or exemption granted in by Shafhi Mohammad to whistleblowers for proving of electronic records. In the cases when the electronic record is produced from the custody of the person who is not in charge of the computer system, Shafhi Mohammad exempted the proponent of electronic evidence from rigorous compliance with 65B. The reason was simple. It will be almost impossible for person to obtain 65B certificate from stranger authority or organisation, who happens to be in charge of concerned computer-system. Arjun Khotkar alters this position substantially and suggests an alternative. Supreme Court refers to several provisions in the civil and criminal law[7] whereby a court can be compel any party or person to file affidavit or produce a document and the Supreme Court holds that such provisions can be invoked by the court, to ensure compliance with section 65B by directing concerned person or entity for producing the Certificate of Section 65B. Though, apparently this alternative looks attractive, it involves several practical and constitutional hazards.

    For example, in a case where RTI activists obtains certain electronic data from the system of the respondent Government entity, then it is absolutely unlikely that such respondent would ever give certificate of 65B, howsoever one tries. And even if it chooses to, the correctness of its contents would be highly susceptible to doubts since any Lacunae in such a certificate would ultimately benefit the respondent by weakening the case of proponent of electronic evidence. In fact, this very case of Arjun Khotkar is a saga of administrative apathy for providing certification of 65B. The Supreme Court narrates in detail the futile efforts of the respondent for obtaining 65B certification and in fact, condones the requirement of compliance with 65B looking at the best efforts made by the respondents. If this can happen in Arjun Khotkar, it can happen in any case and there such condonation would not be possible in the light of this verdict. Most importantly, even if the court invokes aforementioned provision and directs such respondent or entity to produce and comply with 65B mandate by filing certificate, such compulsion would be directly hit by celebrated constitutional guarantee of right against self-incrimination enshrined in Article 20(3). For example, if some data is captured from the computer of the accused, then to compel the accused to give 65B certificate would clearly amount to self-incrimination and would violate the right granted by Article 20(3)[8] of the Constitution of India.

    In insisting for rigorous compliance with Section 65B, what is probably also neglected is the language of Section 65A. 65A provides as follows:

    Section 65A: Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of section 65B.

    Use of word 'may' clearly indicates that 65B was devised to be merely an enabling mechanism to be availed of in appropriate situations. To make it only and concrete code on the subject of digital evidence would be ignoring extremely dynamic and ever-changing realm of electronic evidence.

    In fact, the portion that really needed the clarification in Shafhi Mohammad was last line in Para 30 follows

    "Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies." (Para 30).

    The exemption for the whistleblowers could be understood but granting relaxation 'wherever interest of justice so justifies' was absolutely vague rendering the entire rigour of Section 65B and mandate in PV Anvar otiose. But the whole thing went out instead of one line closing all the doors for any electronic evidence except Section 65B

    The last but not the least error appears to be the interpretation of section 65B(4), which reads as

    65B(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-

    The Supreme Court has read 'all' in place of 'any' by placing reliance on certain judgements[9]. In doing so unfortunately no efforts were made to discuss the facts of the said judgments which necessitated such judicial re-writing of words. Unless warranted by gravity of the situation, such judicial replacement of phrase is not only against the golden rule of interpretation but also clear legislative intent. What 65B (4), really mandates is compliance with 'any' of the conditions mentioned in 65B(4).

    In fact, the most crucial phrase in the scheme of section 65B was "certificate doing any of the following". Thus, the choice was completely left with the proponent of electronic evidence to give certificate which deals with 'any of the conditions mentioned in Section 65B(4)'. However, the Supreme Court now mandates the compliance of 'all' conditions. If compliance with 'all' conditions is insisted, it would lead to absolutely absurd consequences.

    For example, a hacker hacks into a computer system and installs a malware causing a substantial loss to the owner of the computer system. In the proceedings for compensation, the owner cannot be compelled to say on affidavit that 'such data was regularly fed in his computer in the regular and ordinary course of business' since hacking and installation of malware was a solitary instance and compelling the owner to comply with 'All' the conditions will actually be compelling him to lie on oath.

    Precisely for this reason, choice was given to the proponent of electronic evidence to mention only those factors in his 65B certificate which he considers to be relevant and which are applicable in each individual case, instead of insisting for an omnibus certificate.

    The words 'any of the following' give proponent a great and much needed flexibility in the world of digital evidence. Such literal interpretation would have also taken care of the situations, where fulfilment of all the conditions mentioned in Section 65B(2) was not possible for whistleblower to lack of his personal knowledge of the computer system. The legislative intent seems to be that the Certificate should deal with only applicable and appropriate conditions. Unfortunately, this issues left unattended by this judgement.

    Another visible contradiction that appears from the judgement is the stage for production of 65B certificate. At one stage the judgement allows production of the certificate at any stage before the trial begins, in order to protect the rights of the respondent or accused. Whereas in para 57, it recognizes the right of the court to insist for production of the certificate at any time before the trial is over.

    Another crucial aspect this Judgment ought to have dealt with was 'prospective overruling'. Whilst the Judgment in Navjot Sandhu held the filed for almost a decade, there were several trials where no compliance with Section 65B was made on account of the allowance made by the Supreme Court in Navjot Sandhu. There is big question mark in such trials particularly where they are at the verge of the end or already decided and now pending in Appeal. Failure to comply with the mandate of Section 65B can fatally effect the outcome of such trials and appeals in the light of mandate of Anvar PV now re-confirmed in Arjun Khotkar. Specification of cut-off date for application of law as enunciated would have obviated several untoward consequences.

    The data retention guidelines mentioned also in paragraph 62 were much-needed relief but can never replace the imminent need of comprehensive code on this subject through rule making or legislation. There is big void in the field of E-Discovery and Uniform standards for handling of digital evidence, which should have been addressed but they have to wait for another day.

    Though the judgement is a certainly laudable effort to reconcile the conflicting positions as arising from different judgements and provide greater clarity, there were several aspects which required attention and revisit, where it seems to be a golden but missed opportunity.

    Views are personal only
    (Author is a Practising Lawyer at High Court & Supreme Court)

    [1] Civil Appeal No. 20825-20826 of 2017

    [2] Anvar P.V. v. P.K. Bashir & Ors. (2014)10 SCC 473 (Three Judge Bench decision of Supreme Court)

    [3] Tomaso Bruno & Anr v. State of Uttar Pradesh (2015)7 SCC 178

    [4] Shafhi Mohammad v. State of Himachal Pradesh (2018)2 SCC 801 (Division Bench Judgment of Supreme Court)

    [5] (2005) 11 SCC 600 : 2005 SCC (Cri) 1715

    [6] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. 2019 SCC OnLine SC 1553

    [7] Order XVI of Code of Civil Procedure, 1908, Section 91 and 349 of the Code of Criminal Procedure, 1973

    [8] the Constitution of India Article 20(3):

    No person accused of any offence shall be compelled to be a witness against himself.

    [9] Bansilal Agarwalla v. State of Bihar (1962)1 SCR 33 and Om Prakash v. Union of India (2010)4 SCC 17

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