This article is written by Sneha Singh, from Dr Ram Manohar National Law University, Lucknow. The article highlights the position of the Supreme Court regarding the requirement of a certificate under Section 65B of the Indian Evidence Act.
The article deals with the requirement of a certificate under Section 65B of the Indian Evidence Act, 1872. The Supreme Court of India had laid down this criterion keeping in view the surroundings in which we live. So various kinds of electronic evidence are brought before the court on a daily basis. The advancement of technology is proving to be very helpful even in the realm of the collection of evidence.
But what about the authenticity of the evidence that is being produced, the manner in which it was obtained or the device where it was stored? When lots of information that can be used as evidence is being stored in computers, laptops etc from where they can easily be deleted or altered so what about its safety? In these circumstances, the certificate that confirms the authenticity of the evidence produced can prove to be really helpful. The Supreme Court in the case of Arjun Panditrao Khotkar v. Kailas Khusanrao Gorantyal and Ors. has explained this point regarding the requirement of a certificate and why it is imperative to have a certificate. It further mentioned the stage when it is to be furnished.
Section 65B of the IEA, 1872 and evidence admissibility
Section 65B(1) of the Evidence Act mentions that any information which is contained in an electronic record be it printed on paper, recorded, stored or copied in either optical or magnetic media, notwithstanding anything contained in the Evidence Act if the conditions mentioned under Section 65B(2) are met, and if it is produced by a computer then it is deemed to be a document (under the Evidence Act).
There are certain conditions mentioned in Section 65B(2) of the Evidence Act, and if they are met, the information which is contained in an electronic device that is printed on paper or magnetic media, optical media which is produced by a computer where such information is stored, recorded or copied, has to be considered admissible in any proceeding that is held, without the requirement for any proof or the production of the original, as verification for any contents of the original or for any facts that are stated therein, regarding which direct evidence is considered admissible.
Section 65B which provides that a statement in evidence is to be given, a certificate is required to be produced by Section 65B(4) which among other things identifies the electronic record containing the statement and describes the manner in which it was produced and provides the particulars of the device that was used for the production of such an electronic record to manifest that the electronic record was made by a computer, either by a person who is occupying a responsible official position which is related to the relevant device, or which is related to the management of the relevant activities, whichever is appropriate.
Section 65B(4) of the IEA, 1872
Section 65B(4) of the Indian Evidence Act, 1872 states that:
For any proceeding which is held where it is desired by virtue of this section to give a statement, a certificate is to be provided which does any of the following things, that is:
- Identifying the electronic record that is produced containing the statement and also describing the method by which it was produced;
- Providing for any such particulars of any device which was involved in the production of that electronic record as may seem appropriate for the establishment of the electronic record which was produced by a computer;
- Dealing with any of the matters to which the conditions provided under sub-section (2) relate to, and professing to be signed by a person who is occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities has to be the evidence of any matter which is provided in the certificate, and in relevance to this subsection, it is to be sufficient that the matter which is mentioned is to the best of the knowledge and belief of the person who mentions it.
Prior judicial approach regarding Section 65B
The earliest decision of the Supreme Court dealing with electronic records being admissible is State (NCT of Delhi) v. Navjot Sandhu. In this case, it was held that irrespective of compliance with the requirements mentioned under Section 65B, it is no bar to provide secondary evidence under Section 63 and Section 65, for an electronic record. This judgment was later overruled by the Supreme Court in the case of Anvar P.V. v. P.K. Basheer.
Anvar P.V. v. P.K. Basheer
The case deals with the corrupt practices that were exercised by the winning candidate during the election. The complainant had filed a plea to lay aside the election and for that, he had produced CDs that consisted of speeches, songs, announcements, in support of his claim. However, he was unable to secure the certificate under Section 65B(4) of the Evidence Act.
The three-judge bench of the Supreme Court which heard this case had looked into the language of Section 65B(4) for deciding the matter which provides the conditions regarding the admissibility of electronic records. The provision provides that if in any situation, a need arises for giving any statement relating to any electronic evidence which is produced, then any of the following conditions mentioned below are to be satisfied:
- A certificate with the statement that recognizes the electronic record its requirement is to be fulfilled;
- The mode by which the electronic record was obtained must be described by the certificate;
- The particulars of the device which was involved in the production of that record must be furnished by the presenter of the device;
- The conditions which are provided for under Section 65B(2) of the Evidence Act and are applicable must be dealt with by the certificate;
- A signature of a person is to be present on the certificate who occupies a responsible official position in relation to the operation of the relevant device.
Electronic evidence can be easily tampered with or altered, hence, the court should take the required safeguards which are essential in cases where the outcome of the trial is based on electronic records to ensure that justice is done. The court held that a certificate is a must along with the electronic evidence through which the person has to clearly mention that the electronic record that is presented is to the best of his knowledge and belief. The court took these measures to make certain the source and authenticity of the electronic record.
Section 65A of the Evidence Act mentions that the provisions of Section 65B are to be complied with when it comes to electronic evidence and they are to be proved in accordance with the provisions as provided in Section 65B. The electronic evidence can only be considered by the courts and is sent for the opinion of the examiner under Section 45A of the Evidence Act if the requirements of Section 65B of the Evidence Act are fulfilled. The special provisions which are given in Section 65B are to be given preference over the general provisions given in the Act with respect to electronic evidence.
The court held that a certificate under Section 65B of the Evidence Act is required to be produced before the court for the admissibility of CDs, VCDs and electronic chips. The electronic evidence will not be acceptable by the court without a certificate. The legitimacy of the electronic evidence that is in the form of CD, VCD or an electronic chip cannot be depended upon unless there is a due certification of the secondary evidence held by the court.
Sections 65A and 65B govern secondary evidence by way of an electronic record and in this aspect Section 63 and 65 will have no application. It is held by the court that Sections 65A and 65B form a “complete code” in themselves when it comes to the admissibility of information contained in electronic records till the conditions given under section 65B are fulfilled an electronic record in the form of secondary evidence should not be accepted, along with a written certificate under Section 65B(4). It was further said by the court that the Evidence Act does not regard or permit proof of an electronic record by oral evidence if the requirements under Section 65B are not complied with. However, if under Section 62 an electronic record is used as primary evidence, the same is accepted as a piece of evidence, without compliance with the conditions provided in Section 65B.
Tomaso Bruno Case
In this case, the Supreme Court noted that “with the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation.”
To establish that a person is guilty of a certain offence, the use of electronic evidence is increasing with the increasing impact of technology in everyday life. Electronic documents in a strict sense are admitted as material evidence.
The apex court has observed that if proved in the fashion as specified by Section 65B of the Evidence Act and the conditions specified in sub-section (2) of Section 65B are fulfilled, the computer-generated electronic records in evidence are acceptable at a trial. The judgment, to that extent, lays down the correct law. But when the court went ahead and stated that under Section 65 of the Evidence Act secondary evidence regarding the contents of the document can also be led, it became plainly inaccurate and contrary to the provisions of Section 65B.
The electronic record, namely the CCTV footage and the call records, were neither placed on record nor relied upon, this part of the observation in Tomaso Bruno case was in the nature of an obiter. Therefore, neither the question regarding the compliance or non-compliance of Section 65B arose nor was the law laid down in the above-mentioned Anvar P.V case. The apex court referred to the Ajmal Kasab case and the Navjot Sandhu case (which was specifically overruled in the Anvar P.V case) to appreciate the relevance of the electronic evidence in establishing the case either way. Tomaso Bruno, therefore, cannot be taken as law laid down on the subject.
Shafi Mohammad v. State of Himachal Pradesh
In this case, the question was raised that whether a video graphic evidence of the crime scene or the scene of recovery was important to build up the confidence of the court in the evidence collected thereof. For answering this question, the Hon’ble Supreme Court interpreted Section 65B(4) of the Evidence Act, 1872. The said section provides for the procedural aspects regarding the acceptability and certificate of authenticity for the digital evidence.
When the Supreme Court was addressing the aforementioned questions, it appreciated the advantages the modern way of a collection of evidence has and to support that, it relied upon judgements of Ram Singh and Ors. v. Col. Ram Singh, English Judgments in R. v. Maqsud Ali, and R. v. Robson, where they had held that it would be a mistake, with respect to the legitimacy of evidence by depriving the law of evidence of the advantages of the modern way of a collection of evidence by way of an electronic record. While assessing the evidence caution and circumstances should be considered. It observed that if the evidence is relevant the complete admissibility of the electronic evidence cannot be precluded.
The court held that Section 65A and 65B are procedural provisions. Even when the evidence submitted is genuine and important for the case, the question of whether the court would accept the evidence or not would depend on the facts and circumstances of the case and also whether the person who is submitting the evidence is in a position to submit the certificate required under Section 65B(4) or not. The court also had put forward the point that Section 65A and 65B cannot be considered the complete law regarding the admissibility of the electronic evidence. The definition of ‘document’ under Section 3 of the Evidence Act, the definition of electronic record and data given under Section 2(1)(t) and Section 2(1)(o) respectively of the Information Technology, Act, 2000, were also considered by the court to significantly understand the nature of electronic evidence.
When a person possesses authentic evidence but due to some supervening circumstances fails to secure the certificate, it would be a denial of justice to that person. Thus, the procedure which is mentioned under Section 65B(4) of the Evidence Act cannot be made mandatory to be adhered to in every case. The procedural requirements can be relaxed in certain cases and the parties can be allowed to present the electronic evidence without the requirement of a certificate in the interest of justice.
The requirement of producing a certificate given under Section 65B(4) is not always mandatory but only procedural. Under Section 65B(4) a person not in possession of the device from which the document is produced cannot be asked to produce a certificate. The court was of the view that procedural requirements under Section 65B(4) can only be made applicable when the person is in possession of the device and he has produced electronic evidence and hence, is in a position to produce a certificate. However, Sections 63 and 65 cannot be excluded if the person is not in possession of the device.
Arjun Panditrao Khotkar v. Kailas Khusanrao Gorantyal and Ors.
The case deals with two election petitions which were filed by the defeated candidate, one of the petitions were filed by Shri Kailas Khusanrao Gorantyaland another by Vijay Chaudhary, who is also an elector of the same constituency against the returned candidate Arjun Panditrao Khotkar of the Shiv Sena before the Bombay High Court under Section 80 and 81 of the Representation of the People Act, 1951. The respondents by their petitions had challenged the election of Appellant, Shri Arjun Panditrao Khotkar (who was the Returned Candidate, referred to as “RC”) of the Maharashtra State Legislative Assembly.
The subject matter of the case referred is that a set of four nomination papers were filed by the returned candidate. The Respondents had placed their contentions before the court, that the nomination papers which were filed by the Returning Candidate were later than the specified time of 3.00 p.m. on 27.09.2014. They wanted the nomination papers to be rejected as that was not in accordance with the provisions of the law because the RC had not filed them on time. They contended that the papers that were filed by the RC were improperly accepted by the Returning Officer (referred to as the “RO” throughout the article) of the Election Commission Smt. Mutha, as they were suffering from a defect of a substantial nature. Based on this, they wanted the election of the RC to be declared void.
The contentions of the Respondents were based on the video recording through the cameras which were placed inside and outside the office of the returning officer. The claim of the respondents was that the nominations were filed at 3.53 p.m. which was after the provided time duration. A complaint raising the objection regarding the delay in filing of nomination papers was also made before the RO on 28.09.2014 by one of the respondents which were also rejected by the RO on the same day.
Further, the High Court by its order dated 16.03.2016 had asked for the record of the entire election in the concerned constituency from the Election Commission. The record was provided in the court. The Returning Officer was cross-examined and in the cross-examination, he had clearly stated that the election commission had used the cameras to create an electronic record which was used by the office.
It was also brought before the court that an arrangement was made on the first floor of the building for viewing the recordings by placing electronic gadgets like VCR players, etc. It was also observed that the VCDs were marked for the recording as she had instructed.
The Bombay High Court had held on the basis of Smt. Mutha’s substantive evidence that it can be treated as being in conformity with the provisions mentioned in section 65B of the Evidence Act. The High Court ruled that the nomination forms of the RC were not accepted properly and the CDs/VCDs were regarded as valid evidence. The election of the RC was declared void by the court.
The Returning Candidate, Shri Arjun Panditrao had challenged the judgment of the High Court. The case was then presented in an appeal before the two-judge bench of the Supreme Court.
The RC had in an appeal placed his contention against the Bombay High Court judgment stating that the court had wrongly relied on the Shafhi Mohammad judgment which was delivered by a two-judge bench of this court and they had wrongly interpreted the provisions given under Section 65B(4) of Evidence Act, 1872. Further, the appellant placed reliance upon the earlier judgement of the court in the case of Anvar P.V. which was a larger bench judgement to support his claim that a certificate is obligatory under Section 65B(4) for the admissibility of electronic evidence.
The two-judge bench of the Supreme Court before which the matter of the Returning Candidate was placed on appeal, referred it to a larger bench of the court for interpretation.
The 3 Judge bench of the Supreme Court comprising of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ has held that for admissibility of evidence by way of an electronic record, a certificate under Section 65B(4) is a required condition, as was correctly held in by the 3-judge bench of the court in the case of Anvar P.V. v P.K. Basheer. The court has also clarified that the requirement of a certificate is unnecessary under Section 65B(4) if the original document is produced.
Clarification regarding P.V. Anvar’s case
In the said case, it was held that “…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 65B of the Evidence Act.”
The court had clarified the confusion that was regarding the sentence mentioned above in the Anvar P.V. case and held that the last sentence which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is to be read without considering the words “under Section 62 of the Evidence Act…”
It was stated in the judgment that if the original document itself is presented before the court, the requirement of a certificate under Section 65B(4) is unnecessary. The person who owns the laptop, computer, computer tablet or even a mobile phone can by stepping into the witness box himself prove that he is the owner or the concerned device is operated by him, which had the original information first stored on. If it is impossible to bring such system or network physically to the Court when it happens to be a part of a computer system or computer network then Section 65B(1) comes into play and the information contained in an electronic device can be provided according to it and along with the required certificate under Section 65B(4).
The stage when the certificate is to be furnished
The court in its judgment has also taken note of the point that Section 65B does not mention the stage when the certificate must be presented to the court and said that in cases where such certificate could be obtained by the person who is seeking to rely upon an electronic record, then that certificate has to accompany the electronic record when the same is presented before the court as evidence. Whereas the situation is different in cases where either such certificate has been asked for by the court and it is not given by the person concerned or a defective certificate is given then the person referred to in Section 65B(4) of the Evidence Act should be summoned by the Judge conducting the trial and he/she should be asked to present such certificate.
The trial judge has to do so when the electronic record is presented in evidence before him without the required certificate in the circumstances mentioned above. What is mentioned above is based solely on the discretion which is being exercised in civil cases in accordance with the law, and in accordance with the requirements of justice which is based on the facts of each case. Also, the general principle must be kept in mind that in the case of a criminal trial all documents must be supplied to the accused that the prosecution will rely upon before the outset of the trial, under the pertinent sections of the CrPC.
Directions for cellular companies and internet service providers
The court issued certain general directions to cellular companies and internet service providers. The court has asked them to maintain CDRs and other relevant records for the concerned period (according to Section 39 of the Evidence Act) in a separate and secure manner if some CDR or other record is seized during the said period while investigating. The concerned parties can summon such records at the stage of defence evidence or such data is even required at the time of cross-examination of witnesses. The direction mentioned is to be applied with respect to criminal trials till under opposite terms of the licences that are applicable or under Section 67C of the Information Technology Act directions are issued.
The court further states that for the preservation, and production of the required certificate at the relevant stage the aforementioned general directions have to be followed by courts that deal with electronic evidence till rules and directions under Section 67C of the Information Technology Act and the conditions related to data retention are formulated for concurrence by telecom and internet service providers, these directions are to be applied in all proceedings.
The court has also discussed that the electronic call and internet log records are to be maintained by telephone and internet service providers for a limited duration of one year. And if during that duration of that one year the police or other individuals don’t secure those records or secure the records but they don’t secure the certificate, the presentation of a certificate issued after the onset of the trial would in all probability render the data unverifiable. An accused who is seeking to challenge the authenticity of the certificate under Section 65B(4) won’t be able to do so as the electronic record would be missing and he would be prejudiced.
Framing of rules under Section 67C of the Information Technology Act, 2000
The court had directed that by the exercise of powers as mentioned in Section 67C, and also by framing suitable rules which are required for the retention of data involved in the trial of offences, their separation, rules of a chain of custody, stamping and recording maintenance, for the entire duration of trials and appeals, and also with regard to the conservation of the metadata to avoid corruption, there is need of appropriate rules and directions framed in exercise of the Information Technology Act. After considering the report of the Committee which was constituted by the Chief Justice’s Conference held in April 2016, appropriate rules have to be framed for the preservation, retrieval and production of an electronic record.
The Supreme Court by its judgment in the case of Anvar P.V. v P.K. Basheer has already established the point that a certificate was required for admissibility of evidence under Section 65B which was disturbed by the erroneous conclusion reached in certain cases like the Tomaso Bruno case and the Shafhi Mohammad case. The Supreme Court once again in the case of Arjun Panditrao v. Kailas Khusanrao Gorantyal and Ors. made it clear that a certificate is required by relying on the judgment delivered by the court in the case of Anvar P.V.
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