Top
Columns

The Law Of Electronic Evidence,The Error Continues

Dr. Sushil Kumar Gupta
24 Aug 2020 1:20 PM GMT
The Law Of Electronic Evidence,The Error Continues
x
Your free access to Live Law has expired
To read the article, get a premium account.
    Your Subscription Supports Independent Journalism
Subscription starts from
599+GST
(For 6 Months)
Premium account gives you:
  • Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.
  • Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.
Already a subscriber?

Sir, James Stephen, the propounder of the Indian Evidence Act 1872, has used three words with respect to the law of evidence: -

  1. Relevancy
  2. Admissibility
  3. Appreciation

Whereas Relevancy pertains to quality/ character of the facts, Admissibility pertains to how the evidence is to be put forth and Appreciation is application of judicial mind to reaching conclusions. The Indian Evidence Act, 1872 deals with only the first of two, whereas the relevancy deals with, "What" in respect of the facts i.e. what facts are to be considered. The rule of admissibility deals with "How" the evidence is to be gone about.

In Anvar P V [1] case itself, the court has observed in para 1 itself:

"Construction by Plaintiff, destruction by Defendant. Construction by pleadings, proof by evidence; proof only by relevant and admissible evidence. Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility. These are some of the first principles of evidence. What is the nature and manner of admission of electronic records, is one of the principal issues arising for consideration in this appeal."

Section 3 of the Evidence Act defines "Evidence" as under

"Evidence".—"Evidence" means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence."

Thus, Indian Evidence Act recognizes two types of evidence i.e. the Oral Evidence and Documentary Evidence and all other types of evidences are to be looked into and appreciated from these two types of Evidences. Whereas section 59 and 60 deals with the Oral Evidence, section 61 to 90-A deals with the Documentary Evidence. However, for the purpose of this article the relevant are section 61 to 65 and section 65-A and 65-B.

Apart from the above there is a third category of evidence which is called a material evidence or real evidence, the same has been dealt with by the second proviso to section 60 of the Evidence Act which reads as under

"Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."

This provision clearly shows that the material and real evidence has to be proved by oral evidence. For the purpose of oral evidence as per section 60 only Direct Oral Evidence is permitted.

In respect of the Documentary Evidence there are further three categories

  1. Primary Evidence
  2. Secondary Evidence
  3. Which is neither Primary nor Secondary.

This third category is irrelevant and not to be considered as an Evidence under the Indian Evidence Act.

The Law of Evidence is based on the principle that "Best Evidence" must be given in proof of facts. By the word "best evidence", it is meant "best possible evidence". This is a universal rule of Law of Evidence, which is followed throughout the World and this forms the basic fulcrum of the Law of Evidence. A perusal of section 59 and 60 in respect of Oral Evidence shows that it is because of this Law of best Evidence that the Direct Evidence has only been allowed, similarly in case of Documentary Evidence precedence has been given to the Primary Evidence over Secondary Evidence, and even in case of Secondary Evidence those facts are considered as important by which the Secondary Evidence comes as close as possible with the Primary Evidence. In case of Omy chund v. Barker [2]1745 1 ATK 21, 26 ER 50, where Lord Hardwicke held that no evidence was admissible unless it was, "the best that the nature of the case will allow".

HISTORICAL ASPECT OF ELECTRONIC EVIDENCE

The history of computing aspect defines 1947 as the beginning of the Industrial era of Computing. It was the research of US ARPA Project, (presently referred to as Internet) which increased technological project networks protocol and software and led to ARPA Net, which had its origin in 1960s.

It was in 1916 when the legal aspect in respect of electronic evidence surfaced when in the case of Brindley Vs. State[3] 193 Ara 43% Animated case 1916 E 177 (D) which was a case pertaining to dictograph (electronic telephone communication) and the court held as under:

"it is open to the State to produce the dictograph (electro-telephonic communication) in evidence and to have the operator thereof explain the instrument and demonstrate the principles on which it operates."

Justice Swift in the English case of 'Buxton v. Cumming[4], (1927) 71 Sol. Jo. 232 (E) raised the question whether a dictaphone record has ever been accepted in evidence by the Courts and upon the counsel replying that he did not think so, said that he saw no reason why such a record as the one which the witness state he had made should not be put in evidence.

The first time the Indian Courts got confronted with the Electronic Evidence was in the form of a, "Tape-recorded evidence" and the first case in which such an issue cropped up was the case of Rup Chand's[5] case AIR 1956 Punjab 173 wherein justice Bhandari of Punjab High Court considered the admissibility of tape record as a novel concept. In this case the court relied upon the decisions of American and English Courts with respect to the evidence furnished by the devices for electro telephonic communications for dispelling the clouds misgivings about the admissibility of tape-recorded evidence. This decision was later on followed in the Manindra Nath v. Biswanath[6], (1963) 67 Cal. W.N. 191. The Supreme Court tackled this issue for the first time in the case of S. Pratap Singh v. State of Punjab[7], (1964) 4 SCR 733 and in this case both by way majority and minority judgement, the court pronounced approval of the admissibility of tape record of telephonic conversation of the civil surgeon with the Chief Minister and his wife. With the advancement of technology, the Law started getting evolved on this and several judgements were passed thereafter in the case of Yusufalli v. State of Maharashtra[8], AIR 1968 SC 147, Rama Reddy v. V.V. Giri[9], (1970) 2 SCC 340 : AIR 1971 SC 1162, In these cases the court relied on the various English judgement and particularly R. v. Masqud Ali[10], (1965) 2 All. E.R. 464, and a very interesting proposition was found out whereby it was held that there is no difference in the principal between a tape record and a photograph. It was noted that "the evidence as to things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted for quite long".

In the R.M. Malkani v. State of Maharashtra[11], (1973) 1 SCC 471 : AIR 1973 SC 157 and Z.B. Bukhari v. B.R. Mehra[12], (1976) 2 SCC 17: AIR 1975 SC 1788, and thereafter in Ram Singh v. Cl. Ram Singh[13] AIR 1986 SC 3: (1985) Supp1 SCC 611, the Supreme Court for making these kind of evidence admissible laid certain conditions which had to be satisfied, before these were considered to be admissible. Two of these conditions were the accuracy and the possibility of ruling out of tampering for making these evidence as reliable piece of evidence. This was since electronic evidence was held to be delicate and easily subjected to tampering. Yet the conditions of reliability were placed before the evidence could be held admissible. It was only when the test of reliability were passed by these electronic records, the same was held to be admissible. It is important to note that these pieces of electronic records were original in nature and were carrying direct evidence still they had to pass to test of reliability. It is this important aspect which has been missed by Supreme Court in the various judgements pass by it on electronic evidence and thereby an error has cropped up which still continues even with the present judgement.

With the enactment of Information Technology Act in the year 2000 the amendments in the Indian Evidence Act were also brought out by way of Second Schedule r/w Section 91 of the Information Technology Act. Section 3 of the Indian Evidence Act was amended and the Electronic Records were included in the definition of Evidence as Documentary Evidence. The Electronic Records have been defined in section 2(t) of the Information Technology Act:

"Electronic Record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer-generated micro fiche;

This shows that there are four processes which are important for a data to be classified as electronic record these are:

  • Generation;
  • Storage;
  • Sending;
  • Receiving.

An important question that arises is what was the need of enacting Section 65A. A deep thought when given to this issue is that until and unless we read the section that the Electronic Records can be proved by virtue of Section 65-B only, this section carries no meaning and it becomes nugatory or otiose. Just like Section 59 says that all facts except the contents of a document may be proved by Oral evidence and section 61 says that the contents of the Document may be proved either by Primary or Secondary evidence, similarly Section 65A says that the electronic records are to be proved in accordance with the provisions of section 65B. Since, all these sections whether it is section 59, 61 or section 65A have the word "May" yet for the purpose of the law of Evidence, they treated as shall, meaning thereby that facts (except contents of documents and electronic records) are to be proved only by Oral Evidence, Contents of the documents are to be proved only by Primary and Secondary Evidence similarly Electronic Records are to be proved only in accordance with Section 65-B. This is the reason why Section 65-A and 65-B are considered a Special provision and a Complete code in itself.

The next question arises is why was there a need for making 65-A and 65-B as a Special Provision in respect of Electronic Evidence. Prior to the enactment of Information Technology Act, 2000 in respect of Electronic Evidence reliability was tested before the same were held to be admissible. Since Electronic Records because of its very nature is fragile, and is susceptible to manipulation, edition, deletion, addition etc. hence the same are put to the rule of reliability before they are held to be admissible. It was because of this reason that the legislature by virtue of Section 65-B had placed certain conditions to be fulfilled before the said electronic records is considered as admissible.

Section 65-B (1) Classifies Electronic Evidence into "Electronic Records" and "Computer Output". As far as the Electronic Record is concerned it has the same meaning as is defined u/s 2(t) of the Information Technology Act, 2000 as mentioned supra. "Computer Output" is defined in section 65-B(1) itself as

"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 (hereinafter referred to as the computer output)".

Further with regards to "Computer Output" a legal fiction has been created that the same may be considered as a document provided it satisfies the conditions as mention in section 65B(2) and if those conditions are satisfied then neither the oral evidence nor the production of the original is required, meaning thereby that once the conditions of section 65-B(2) are satisfied then the "Computer Output" will attain the same status as "Electronic Records".

ANALYSIS OF THE ABOVE JUDGMENT

The present was a case where the Supreme Court by way of a reference was asked to examine about the need to revisit P.V. Anwar case, particularly in the light of certain judgments passed by the other benches of the Supreme Court and the High Courts after overruling the law laid in the Parliament Attack case on this issue, in the Anwar Case. The issues which were before the court which needed consideration were:

  1. Segregation of Electronic Evidence into Primary Electronic Evidence and Secondary Electronic Evidence.
  2. Whether "any" or "all" the Conditions as mentioned in 65-B (4) has to be mentioned in the certificate.
  3. Whether the issuance of certificate U/s 65-B (4) was mandatory and the only means of authentication.
  4. What happens when the certificates cannot be produced by the parties.
  5. Whether Section 65-B is a mode of proof or it goes into the root in respect of the admissibility of the electronic records.
  6. Whether the provisions of Section 65-A and 65-B are a complete code in itself.
  7. Stage at which the certificate is to be produced.

Segregation of Electronic evidence into primary electronic evidence and secondary electronic evidence.

Whether "any" or "all" the Conditions as mentioned in 65-B (4) has to be followed in the Certificate.

Both the issues have been dealt in the judgment from Paras 12 to 35. The court while dealing with the issue of Primary and Secondary Evidence has analysed the various provisions of the Indian Evidence Act like Section 3 particularly the definition of the word "document", provisions of Section 61 to 65, Section 65-A and 65-B, various provisions of the Civil Evidence Act, 1968 and Civil Evidence Act, 1995 of U.K, Provisions of Section 68 to 70 of the UK Police and Criminal Evidence Act, 1984. As per the analysis it came to the conclusion that Section 65-B(1) talks of original and copies and thus it categorized the same into Primary and Secondary Evidence without referring to the technical aspects of the electronic data or the definition of "Evidence" as given in Section 3 of the Evidence Act.

The Electronic Evidence as per Section 65-A and 65-B can be categorized into "Electronic Records" and "Computer output". A dissection of that sub-section would reveal that it consists of distinct parts. The first part stipulates that any information contained in the Electronic Record in the form of paper print output or optical or magnetic media output, i.e. the Electronic Record copied, stored or recorded on an optical or magnetic media from another source, i.e., the "Computer Output" shall be deemed to be a document. The first part, therefore, deals with the paper printout or optical or magnetic media on which the Electronic Record has been copied, stored or recorded as distinct from the original media on which the data or information is created, or recorded, stored, received, sent or copied. Media and paper print outs are tangible articles. Paper print outs can be seen and read. Media can also be seen and read, when viewed with appropriate equipment or when its paper printouts are taken. Noticeably and pertinently, the paper printout output or the optical or magnetic media output, on satisfaction of the conditions stipulated in Section 65-B is treated as a document by itself. The digital evidence cannot be divided into Primary and Secondary as the same is never readable and is in binary format. It is only after it undergoes the process of processing and conversion it becomes readable. What is seen on the screen or monitor is always after the data undergoes the process of processing and conversion. Thus, the original of the data can never be seen unless there is a process of conversion from binary file to text file or otherwise.

Before adverting further, it is important to consider the Provision of Section 3 of the Indian Evidence Act, 1872 where "Document" as well as "Evidence" is defined. They read as under:

"Document" "Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter."

"Evidence" "Evidence" means and includes —

(1) All statements, which the court permits or requires to be made before it by witness, in relation to matters of fact under inquiry;

Such statements are called oral evidence;

(2) 6[All documents including Electronic record produced for the inspection of the court];

Such documents are called documentary evidence."

A bare perusal of the above shows that even though as per the definition of the document electronic record is not included under it but while defining "Evidence" the same has been considered as a part of "Documentary Evidence" but there is no mention of the term "Computer Output". This is an important aspect which the court has failed to notice as in Para 21 the court notices and has observed,

"the deeming fiction is for the reason that "document" as defined by Section 3 of the Evidence Act does not include electronic records."

This observation is not correct as the court has simultaneously not looked into the definition of Evidence given in the same Section where for the purpose of documentary evidence Electronic Records has been held to be inclusive in the document. Further this reflects that even though the Electronic records are considered as Documentary Evidence yet they have been segregated from the term Document. Meaning thereby the Electronic Record though inclusive in Documentary evidence yet it maintains a "separate class" in itself.

The Hon'ble court without analysing the contents of Section 65-B (4) has simply applied the proposition of law that doing any of the following things..." must be read as doing all of the following things, by applying the principle that the expression "any" can mean "all" given the context. There is no doubt that the word "any" can mean all in the given context but the question is whether in the context of Section 65-B(4) does "any" mean "all". The Hon'ble Supreme Court has not analysed the issue in the context of Section 65-B (4). Further it is to be seen that by giving a literal meaning to "any" is there any ambiguity, or is there a mischief so that "any" has to be read as "all" or does interpreting "any" as "all" lead to any "absurdity".

Subsection (4) reads:

"(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-

(a) Identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

And purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it."

A bare perusal of the above shows that whenever it is desired to give the Evidence in respect of "Electronic Records" or in respect of "Computer Output", as per provision of Section 65-B, a certificate in the form as mentioned in 65-B (4), (a) to (c) has to be given. It is important to mention here that the word statement in evidence refers to the contents of documents as the language of Section 65-A and 65-B have been taken from Section 5 of the Civil Evidence Act, 1968 of U.K. where instead of contents of documents the word "statement in evidence" is being used. Thus, in respect of Electronic records "statement in evidence" will refer to the "contents of the Electronic Records".

The word "desire" has been used intentionally by the legislature as any print-out can be used either in the form of a "document" or in the form of an "Evidence of Electronic Record/ Computer Output". When used in the form of Document evidence one has to adopt the provisions as given in Section 61 to 65 but when it is used in the form of "Evidence in respect of Electronic Records", then the provisions of Section 65-B are to be followed and a certificate is required. This explains the use of the words, "desire" in this Section. The word Statement used in this section means "contents of electronic record". These aspects have not been considered by the Supreme Court while holding that "any" means "all".

The following example shows the absurdity in this interpretation. A case where while working on the Computer some Malware gets installed or a part of the data (irrelevant) becomes corrupt which is rectified without much damage to the relevant data. In such a case the person having control over the Computer cannot be compelled to issue a certificate "that such data was regularly fed into computer in the regular and ordinary course of busines" since such an incident will actually be compelling him by reading the word "any" as "all", to lie on oath even though the said instance was a solitary incident.

Further as per Sub-section 4(a) the certificate should contain the identification of the "Electronic Record" containing the statement but also the manner in which the "Electronic Record" was produced. A bare perusal of the same shows that this provision in applicable in respect of "Electronic Records" and not in respect of "Computer Output". Further this also shows that the certificate not only concerns with the "Contents of Electronic Records" but it also concerns with the factum of "How" the "Electronic Record" has been produced. The Second part i.e. the mode of production of "Electronic Records" could have been Proved only by direct oral evidence but by way of the present certificate that part has been taken care of and after this certificate, the Oral evidence in respect of the production of "Electronic Records" is not required. This aspect also finds corroboration from the provision of Subsection (1) where while dealing with "Computer Output" it is mentioned as "without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible" and this aspect i.e. the mode of production in respect of "Computer Output" is taken care of by provision of Subsection (2)(a) of 65-B.

Sub-Section (4)(b) seeks details of the device involved in production of that "Electronic Record" to show that the same was produced by Computer. This is also applicable in respect of "Electronic Records" and not in respect of "Computer Output". In respect of "Computer Output", the said condition is already mentioned in Sub-section 2(d).

Sub-Section (4)(c) deals with the conditions mentioned in Sub-section (2) and since this pertains to the "Computer Output" hence this is applicable in respect of the same and does not relate to the "Electronic Record".

The Legislature will never seek a duplicity of the things. If all the Conditions mentioned in the certificate are made mandatory in respect of "Computer Output" there will be duplicity of Section 65-B (4) (a) and (b) and Section 65-B (2) (a) and (d) and that could never have been the intention of the Legislature. Thus, the provision should be given its literal interpretation and the word "any" used has to be read literally and should not be read as "all" otherwise the same will lead to duplicity in the certificate, amounting to absurdity. Further, it will also render that Section 65-B applicable only to "Computer Output" and not to "Electronic Records" and this will make provision of Section 65-A otiose or redundant which could not have been the intention of the Legislature.

It is important to mention here that since Computer information or record can be edited or manipulated or tempered with without being detected particularly when the data is in binary form or unreadable hence various safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to "Electronic Record" sought to be used as Evidence. "Electronic Records" being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of "Electronic Records" can lead to travesty of justice hence the above safeguards as mentioned in Section 65-B (4) (a) and (b) in respect of "Electronic Records" or the Provisions 65-B (1), (2), (3), (5) and (4)(c) in respect of "Computer Output" are required. Same was the provision of law even prior to 2000 when authenticity and reliability were the conditions precedent for the "Electronic Records" to be considered as admissible. It was not to be construed that in case of original tapes, the condition of reliability was not required. Even in respect of original tapes the test of reliability was to be fulfilled before the same were held to be admissible. Hence the judgment has faulted on two aspect first categorization of the Electronic Evidence into Primary and Secondary and then reading the word "any" in Sub-Section (4) as "all".

Whether the issuance of certificate U/s 65-B (4) was mandatory and the only means of authentication.

Section 65-B (4) starts "In any proceedings where it is desired to give a statement in evidence by virtue of this section….." The words "where it is desired" used in this Section shows that there is an option available to prove the Statements in Evidence either by virtue of Section 65-A and 65-B or by use of other Sections. Since certain print outs obtained by use of Computer are in the form of documents hence the statement in evidence in respect of them can be proved as per the provision of Section 61 to 65 of the Evidence Act. It is only when the record is being proved as Electronic Evidence by virtue of Section 65-A and 65-B that the certificate becomes mandatory and as per the Evidence Act the only means of authentication. It is because of this, that Section 5 of the Civil Evidence Act, 1968 was repealed. The US law in the form of Rule 902 provides various modes of Authentication but as per the Indian Evidence Act, certificate u/s 65-B (4) is the only mode of authentication before considering the admissibility of the "Electronic Records" or "Computer Output". It is for this reason that Hon'ble Justice V. Ramasubramanian concludes by observing as under:

"It will be clear from the above discussion 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, by Act 21 of 2000, 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[14] to Anvar P.V. to Tomaso Bruno[15] to Sonu[16] to Shafhi Mohammad[17]".

The tnt ame can be used as modes. contents of electronic as any print-out can prbe used either in the form of a "document" or in the form of an "Evidence of Electronic Record/ Computer Output". When used in the form of Document evidence one has to adopt the provisions as given in Section 61 to 65 but when it is used in the form of "Evidence in respect of Electronic Records", then the provisions of Section 65-B are to be followed and a certificate is required. This explains the use of the words, "desire" in this Section. The word Statement used in this section means "contents of electronic record". These aspects have not been considered by the Supreme Court while holding that "any" means "all".

What happens when the certificates cannot be produced by the parties.

In the case of Shafhi Mohammad the Division Bench granted exemption to third parties i.e. persons who produce the "Electronic Record" but are not in-charge of the Computer System for proving the Electronic Records for practical reasons as it was not possible to obtain certificate under Section 65-B from an organisation or authority or stranger. In the present judgment the court dealt with this issue from Para 36 to 49 and held that Shafhi Mohammad laid an incorrect law and overruled it. Further the Court provided an alternative that in such a situation the court should play an active role and by virtue of its power either under Section 165 of the Evidence Act or Order XVI of Civil Procedure Code, 1908 or Under Section 91, 311 & 349 of Criminal Procedure Code, 1973 Summons the Stranger or Authority or Institution to produce such a certificate thereby placing a positive obligation on the trial court judge, to summon the certificate in a case where electronic evidence is relied by a party without a certificate. The said procedure as laid by Supreme Court has its own hazards as the type of Certificate produced under such Compulsion may itself be violative of right against self-incrimination as guaranteed under article 20(3) of the Constitution particularly in the case where the Computer was in possession and control of the accused and the question before the court will be whether he can be compelled to give a certificate as per 65-B (4) which will incriminate him. Further the quality of such certificate will always be doubtful. The narration of the Supreme Court regarding condonation of such requirement of Compliance of Section 65-B after making futile efforts will also open a new Pandora Box. Further such type of interpretation is also against the statute where the word "desired" is mentioned. Thus, instead of clarifying the issue the judgment in the present case has made the Compliance of the same more complicated and impractical.

Whether Section 65-B is a mode of proof or it deals with admissibility of the Electronic Records.

The judgment reaffirmed the law as laid in Anvar Case by making the certificate under Section 65-B (4) mandatory and as a condition precedent to the admissibility of the Electronic Evidence. Hence the court has ruled that 65-B deals with the admissibility of the Electronic Evidence and it is not merely the mode of proof. By this judgment the court has in fact indirectly has also over-ruled the law laid in the case of Sonu Vs. State of Haryana wherein it was inter-alia held that the ground of non-production of certificate under section 65-B, could not be entertained before an Appellate Court, if the objection has not been taken during trial as it pertains to being only a mode of proof and does not render the electronic evidence inherently inadmissible. Since as per the judgment in Arjun Panditrao's [18]case the Court has held that the certificate is mandatory and goes to the core of the admissibility of the document thus it is not a mode of proof but absence of the certificate renders Electronic Evidence inadmissible.

Whether the provisions of Section 65-A and 65-B are a complete code in itself.

The court in the present case reiterated the stand of Sec 65-A and 65-B as a Complete Code in itself as was laid in the case of P V Anvar. In P V Anvar case in Para 24 there was a self-contradiction in the judgment on this aspect wherein Para 24 the court has observed as under:

"if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act"

In the present case the said view of 65-A and 65-B being a complete code has been fortified by correcting the said lacuna in Para 24 of the judgment of P V Anvar by the present judgment in Para 32 wherein it is stated as under:

"This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which reads as "…if an Electronic Record as such is used as primary evidence under Section 62 of the Evidence Act…". This may more appropriately be read without the words "under Section 62 of the Evidence Act,…". With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited."

Since the Electronic Evidence can be undetectably edited or copied without being detected hence the courts always applied the rule of reliability on such evidence before considering the same as admissible. It was in keeping with this spirit that the Legislature framed the provisions of Section 65-A and 65-B as a Special provision in respect of Electronic Records. Thus, it is considered as a complete Code in itself.

Stage at which the certificate is to be produced.

The present case shows that after the present judgment has dealt with this issue elaborately, which was somehow missed in the Anvar case. In Para 52 the court observes as under:

"It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/final report have to be given to the accused. Section 207 of the CrPC, -------, is mandatory. Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins."

In Para 53 the Court relied on para 7 of the judgment, Central Bureau of Investigation v. R.S. Pai[19] (2002) 5 SCC 82,

"7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court."

Further the Court thereafter deals with the balancing act and approved the law laid in the case of Paras Jain[20] by the Rajasthan High Court and Kundan Singh[21] by the Delhi High Court. However, despite elaborately dealing with the issue there is yet no clarity as to when should the court conclude that the said electronic evidence is inadmissible for want of a certificate u/s 65-B or when should it feel that it should exercise its power under various section 165 of Evidence Act or Section 91 or 349 or 311 of CrPC or Order XVI of Civil Procedure Code, 1908.

Conclusion

The present case has created more confusion, Complications and uncertainties on the law of Electronic Evidence by wrongly segregating the same into Primary and Secondary Evidence, reading "any" as "all" in Section 65-B (4), laying positive obligations on the court for getting Complied the Provision of Section 65-B (4), and several other issues. It seems that a golden opportunity has been missed by the Supreme Court by declining to revisit Anvar case.

Views are personal only
(The author is a practising advocate of the Trial Courts, High Court and Supreme Court dealing mainly with white collar crimes)

[1] Anvor PV v. PK Basheer (2014) 10 SCC 473

[2] Omy Chund v. Barker 1745 1 ATK 21, 26 ER 50

[3] Brindley Vs. State 193 Ara 43% Animated case 1916 E 177 (D)

[4] Buxton v. Cumming, (1927) 71 Sol. Jo. 232 (E)

[5] Rup Chand's case AIR 1956 Punjab 173

[6] Manindra Nath v. Biswanath, (1963) 67 Cal. W.N. 191.

[7] S. Pratap Singh v. State of Punjab, (1964) 4 SCR 733

[8] Yusufalli v. State of Maharashtra, AIR 1968 SC 147

[9] Rama Reddy v. V.V. Giri, (1970) 2 SCC 340 : AIR 1971 SC 1162

[10] R. v. Masqud Ali, (1965) 2 All. E.R. 464

[11] R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 : AIR 1973 SC 157

[12] Z.B. Bukhari v. B.R. Mehra, (1976) 2 SCC 17: AIR 1975 SC 1788

[13] Ram Singh v. Cl. Ram Singh AIR 1986 SC 3: (1985) Supp1 SCC 611

[14] State (NCT of Delhi) v. Navjot Sandhu Ors. (2005) 11 SCC 600

[15] Tomaso Bruno & Anr vs State Of U.P, (2015) 7 SCC 178

[16] [email protected] Amar v. State of Haryana, Criminal Appeal No. 1779/2013

[17] Shafhi Mohammad vs The State Of Himachal Pradesh, (2018) 2 SCC 801

[18] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, Civil Appeal Nos. 20825-20826 of 2017, 2407 and 3696 of 2018

[19] Central Bureau of Investigation v. R.S. Pai (2002) 5 SCC 82

[20] Paras Jain v. State of Rajasthan, 2016 (2) RLW 945 (Raj.)

[21] Kundan Singh v. The State, I (2016) CCR 1 (Del.)

Next Story