It is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, remarked Justice V. Ramasubramaniam in his concurring judgment in the decision holding the mandatory nature of the provision.
Though he concurred with the judgment authored by Justice RF Nariman in (Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal) in which the court held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, the judge concluded his opinion as follows:
"The major jurisdictions of the world have come to terms with the change of times and the development of technology and finetuned 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 to Anvar P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad. "
Acrimony behind Section 65B
Answering the legal issue, the Judge noted that unlike Section 136, the Section 65B(1) starts with a non-obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. The judge said that has created lot of acrimony behind Section 65B, the judge added. He said:
"While doing so, it does not talk about relevancy. In a way, Sections 65A and 65B, if read together, mixup both proof and admissibility, but not talk about relevancy. Section 65A refers to the procedure prescribed in Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled."