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ABOUT THE AUTHOR
Advocate Dr. Rau P S Girwar is an esteemed advocate and has been involved in the field of law since 2010 and has contested cases in the Supreme Court of India and various high courts including the Punjab and Haryana High Court, Delhi High Court, Indore High Court and various district and sessions courts.
He has an excellence and experience in civil, criminal, constitutional and service matters and has a wide range of experiences in various matters including money laundering, narcotic and murder cases.
This article has been written with assistance of his junior Kushaatula Puhanian, who is a second year law-student studying at the Guru Gobind Singh Indraprastha University, New Delhi.
ABSTRACT
The industrial revolution in the 1900s bought with itself a lot of new technology and with the advent of new technology can new ways for daily chores and routines. The way the information was stored with the people also started to change from the oriental paper to the western computer. The same change could also be seen coming in the judicial system with recording and storing of evidences and statements of the accused and aggrieved started to be recorded using technology, this brought the changes in the way evidences started to be presented in the Courts. This was made possible in India with the Indian Evidence (Amendment) Act, 2000 which brought with itself the insertion of Section 65A and Section 65B forming part of Chapter V dealing with documentary evidences.
This article discusses in detail the present case scenario of electronic evidences in India in accordance with the Section 65B of the Indian Evidence Act, 1872
INTRODUCTION
Since electronic records are more susceptible to tampering, alteration, transposition etc, certain safeguards are needed so that there is no travesty of justice. An electronic record to become an evidence needs to have integrity of data, integrity of the hardware/ software, security of system where it was stored.
The electronic records which has been deposed as an evidence, if challenged on the ground of misuse of system or operating failure or interpolation has to be proved beyond reasonable doubt.
Section 65 A and Section 65B were inserted by the Legislature in 2000 keeping in mind the demand of such legislation as the evidences many evidences were now being recorded on computers or electronic devices and a legislation was required for the control of such evidences so they could not be tampered with and used as an evidence bringing travesty to justice.
Before understanding legislation in relation to electronic records, it is necessary to understand the two main types of evidences as have been mentioned in Section 62 and Section 63 of the Indian Evidence Act.
PRIMARY EVIDENCE: when the document itself is produced for the inspection of the court.[1]
SECONDARY EVIDENCE: every evidence which is not a primary evidence i.e. when copy of the primary evidence is used as an evidence, such evidence has to be backed up by other evidences in its support which is not required by primary evidences.
The anomaly that was being found in Section 65B and which created confusion for almost two decades was the presence of S. 65B(2) which presented for circumstances making an electronic record admissible as an evidence and S. 65B(4) which mandated the presence of a certificate along with such electronic records for their admissibility as evidences.
This was cleared after two decades and numerous case laws with the judgment of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [2] which has been discussed below.
ANVAR V. BASHEER
Anvar v. Basheer[3] was the leading case before Arjun v. Kailash (supra) wherein many important points had been discussed. In this case, the court had discussed both the nature and the manner of the admission of electronic records. It was held by the bench that any documentary evidence by way of an electronic record under the evidence act could be proved only in accordance with the procedure that was provided u/s 65B in the light to S. 59 and 65A. The purpose of these provisions was to provide admissibility to the secondary evidences in electronic form i.e. generated by the computer. It was held that the section began with a non-obstante clause and the very admissibility of electronic documents depended on the satisfaction of the four conditions that were mentioned u/s 65B (2) of the evidence act.
CERTIFICATE
It had been clarified in this case that the person relying on the electronic record only needed to state in the certificate that the contents were correct to the best of the knowledge and belief of the deponent (person issuing the certificate). Such safeguards were necessary to avoid failure of justice since electronic evidences could be easily tampered with, or altered, transposed, etc. The certificate must also be accompanied with the electronic record when the same was produced as an evidence. These safeguards were necessary to ensure the source and authenticity, which were the two hallmarks pertaining to the electronic records sought to be used as evidences.
ARJUN PANDITRAO KHOTKAR V. KAILASH KUSHANRAO GORANTYAL
This is the most recent and most important case for electronic documentary evidence as in this case, all the past judgments have been given a clearer and better view while there are also many judgments that have been overruled by this case.
The facts of the case are as follows:
- Election petition challenged by Mr. Arjun Pandit Rao from Jhalna-101 Legislative Assembly Constituency, the ground was that the nomination papers being filed after the stipulated deadline.
- Respondents contended to rely on video camera recordings to prove the candidate had filed nomination papers after deadline.
- The CDs were produces by the election commission as per the guidelines of the HC. But, the necessary certificates were absent which were necessary as in accordance to S. 65B(4) despite multiple requests by the petitioner.
- During the Cross examination, the election commissioner testified that the video recordings were authentic and the evidence was admitted by HC based on this testimony even with the absence of the certificate. It was held by the high court that it was satisfied that there was “substantial compliance” with S. 65B as the competent officer had testified for the recordings being authentic.
ISSUES INVOLVED
The issues that were presented before the Hon’ble Supreme Court in the case have been mentioned below:-
- Whether a certificate u/s 65B(4) must be produced even when an original record of the electronic evidence is available, or does it have to be given only when a secondary record of the electronic evidence is produced?
- Whether compliance with S. 65B(4) is mandatory even in a situation when it is not possible to obtain the certificate from the competent authority?
JUDGMENT
The judgment was given by a three-judge bench comprising of Nariman J., S. Ravindra Bhat J. and V. Subramniam J. and includes various aspects for S. 65B of the evidence act which have been mentioned as under:-
• The court reiterated the special provision that the S. 65A and 65B of the evidence act were a complete code in themselves and that a written certificate u/s 65B was a sine qua non for the admissibility of electronic evidences.
• Nariman J: S. 65B (4) differentiated between the ‘original’ electronic record, contained in the computer in which the information is first stored- and secondary copies that are made from the primary electronic record. In the present instance i.e. this case where the original record would be the computer of election commission where the video footage is stored. It was held that a certificate under S. 65B (4) shall have to be obtained only when the secondary copies of the electronic record are produced before the court.
• Thus, production of a certificate would not be mandatory if the original or the primary record has been produced. The original record cab be directly adduced as an evidence if the owner of the computer/device steps into the witness box and establishes that the device is owned/operated by him.
• The secondary copies can be produced along with the certificate when the computer forms a part of the ‘computer network’ or the ‘computer system’ as has been defined by the Information Technology Act, 2002.
• A clear view had been given by Nariman J. regarding the dictum of Anvar v. Basheer(supra) that the dictum was to be read by omitting the words “under S. 62 of the Evidence Act” because S. 65B was a complete code for electronic evidence and would supersede the provisions such as that of S. 62.
• It has been implied in this case that it is not necessary for reference to S. 62, as S. 65B (1) itself distinguished between the original electronic record and the secondary copies of the electronic record.
• It was held that Tamaso Brunoo[4] was per incuriam as it had been concluded by the Court that S. 65B was not a complete code ignoring the ratio of Anvar v. Basheer (supra).
• Nariman J. also pointed out that Shahfi Mohammad[5] had misinterpreted law while concluding that S. 65B was merely a procedural provision and that the certificate could not be secured by persons who were not in possession of an electronic device since an application could always be made to the judge for the production of such a certificate from the requisite person u/s 65B (4) in cases where the person refused to give it.
• STAGE OF FURNISHING CERTIFICATE TO THE COURT:
Section 65B does not refer to any particular stage for when the certificate has to be furnished before the court, but only mentions that where such certificate could be procured by person seeking to rely on the electronic record, such certificate must accompany the electronic record when the same is produced in evidence. In cases were either a defective certificate was given, or where such certificate was demanded but was not provided by the concerned person, then the judge conducting the trial must give directions for providing of the certificate by such person(s). If a person had to be produce before the court a document for which he/she was not able to obtain certificate, he /she could make an application to the Court at any stage prior to the completion of the trial, and the court could direct for the production of the certificate under S. 65B(4) pf the evidence act. This however lies with the discretion of the law in civil cases, as in accordance with the requirements of justice on the facts of each case. However, while dealing with criminal cases, it has to be kept in mind that the accused has to be supplied with all the documents that the prosecution seeks to rely upon before the commencement of trial, under the relevant sections of the CrPC. This, however, seems to have a conflict with the decision of the Court that the documents could be procured with an application to the Court at any stage of trial.
The Court reached at a conclusion that obtaining a certificate u/s 65B (4) was precedent in all situations where the secondary copies of an electronic record were produced.
• BELIEF ALONE CANNOT CONSTITUTE A CERTIFICATE:
In Anvar v. Basheer (supra) that the certificate should have been in the BEST OF KNOWLEDGE AND BELIEF of the deponent (person signing the certificate). The same was given a further interpretation by saying that a person could not testify to the best of his knowledge and belief at the same time. This means that the certificates u/s 65B (4) could be based on the best of belief alone. Thus, the mandatory certificate contemplated u/s 65B (4) could not be based on one’s own belief but based on the belief when such belief was the result of the knowledge of the facts as per the record.
[1] S. 62, INDIAN EVIDENCE ACT, 1872.
[2] Civil Appeal Nos. 20825-20826 of 2017.
[3] CIVIL APPEAL NO. 4226 OF 2012
[4] (2015) 7 SCC 178.
[5] (2018) 5 SCC 311.