A two-judge bench of the Supreme Court has discussed the effect of the three-judge bench judgment of the apex court in PVAnvar vs PK Basheer in which a two-judge bench judgment in State (NCT Of Delhi) vs Navjot Sandhu@ Afsan Guru was overruled.
The bench observed that contents of electronic records may be proved in accordance with the provisions contained in Section 65B of the Indian Evidence Act.
Interpreting Section 65B (4), the three-judge bench of Justice RM Lodha, Justice Kurian Joseph and Justice Rohinton Nariman in Anvar’s case held that an electronic record is inadmissible in evidence without the certification as provided therein. Navjot Sandhu’s case, which took the opposite view, was overruled.
A two-judge bench, while considering the question whether electronic records without 65B(4) certificate admitted by the trial without objection from the defence can be challenged at appellate stage, observed as follows:
“The interpretation of Section 65B (4) by this Court by a judgment dated 04.08.2005 in Navjot Sandhu held the field till it was overruled on 18.09.2014 in Anvar’s case. All the criminal courts in this country are bound to follow the law as interpreted by this Court. Because of the interpretation of Section 65B in Navjot Sandhu, there was no necessity of a certificate for proving electronic records. A large number of trials have been held during the period between 04.08.2005 and 18.09.2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anvar’s case has to be retrospective in operation unless the judicial tool of ‘prospective overruling’ is applied. However, retrospective application of the judgment is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage. Attempts will be made to reopen cases which have become final.”
The court then explained the doctrine of ‘prospective overruling’ from the judgment in IC Golak Nath vs State of Punjab, (1967) 2 SCR 762, in which it was held that there is no acceptable reason why it could not restrict the operation of the law declared by it to the future and save transactions that were effected on the basis of earlier law.
It is also held in Golak Nath case that when a subsequent decision changes an earlier one, the latter decision does not make law, but rather discovers the correct principle of law and the result is that it is necessarily retrospective in operation.
As the law declared by this court is the law of land, it was held that there is no reason why this court declaring the law in supersession of the law declared by it earlier cannot restrict the operation of the law as declared to the future and save transactions that were affected on the basis of earlier law.
Admittedly the three-judge bench did not apply the principle of prospective overruling in Anvar’s case.
“This Court did not apply the principle of prospective overruling in Anvar’s case. The dilemma is whether we should,” the bench said.
The court accepted that if the judgment in the case of Anvar is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice.
Question left open
“As Anvar’s case was decided by a Three Judge Bench, propriety demands that we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a Three Judge Bench. In any event, this question is not germane for adjudication of the present dispute in view of the adjudication of the other issues against the accused,” the court concluded.