Jul 31,2020 | 08 min read

Legal Quandaries of Electronic Evidence in India By Ashwinkumar Arulananthan and Jagruthi Reddy

Consider a case where an investigating officer recovers a compact disc from the possession of an accused person during a search conducted in his house. The Compact disc contains a vital conversation between two accused persons which would conclusively prove the existence of a conspiracy between them. However, the investigating officer could not find the devices used for recording the conversation and writing the compact disc. In such a case, is the compact disc recovered from the possession of an accused person admissible in evidence during the trial?
In the light of a recent decision of the Hon’ble Apex Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (Arjun’s Case) dated 14.07.2020, an instinctive answer would be that the compact disc is an “electronic output” and therefore admissible if a “certificate” under Section 65B Indian Evidence Act 1872 (hereinafter Sec.65B) is obtained. However, the perplexing question that follows is, when the flash drive is recovered from the possession of an accused, who has to give a certificate under Section 65B?

Interpretations of the Hon’ble Apex Court in the past two decades

The Hon’ble Apex Court in State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru (hereinafter Sandhu’s Case) had the occasion for the first time to examine Section 65 B with respect to its mandatory compliance. The Hon’ble Apex Court in the said case held that, irrespective of the compliance of the requirements of Section 65B,  there is no bar for adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. The Hon’ble Apex Court, therefore, diluted the provisions of Section 65B by making it “not mandatory”. The Judgement faced criticisms on the aspect that the Hon’ble Supreme Court did not consider the “non-obstante clause” of Section 65B and the well-settled principle of Generalia specialibus non-derogant.

The criticisms in the Sandhu’s case were subsequently addressed by a 3-Judges bench of the Hon’ble Supreme Court in Anvar P.V vs P.K.Basheer & Ors (hereinafter P.V.Anvar’s Case). In the said case, the Apex Court overruled its previous decision in Sandhu’s case and categorically held that the Section 65 B of Indian Evidence Act 1872, is a specially enacted provision and will override the other general provisions under the  Indian Evidence Act 1872.  The Apex Court further held that, Primary Evidence with respect to electronic record is covered under Section 62 of  Evidence Act, while the Secondary Evidence with respect to electronic record is covered exclusively under section 65B. The decision in P.V. Anvar’s case also provided a definite procedure and form in which the certificate under Section 65B has to be produced. As per the said ruling, the all-conditions contemplated under Section 65B(2) as well as Section 65B(4) are mandatory.  The Hon’ble Apex Court also mandated that, without such a certificate, the secondary electronic record will not be admissible in evidence under any other provision.

The ruling in P.V.Anvar’s case was unclear on various aspects, which lead to a series of concerns indicated in various judgements of the Hon’ble Apex Court as well as other High Courts. The decision was silent on the aspect of “Prospective Overruling” which was identified and left open to be decided by a larger bench by the Hon’ble Apex Court in Sonu @ Amar vs State Of Haryana (hereinafter Sonu’s Case).  The decision in P.V.Anvar’s case also did not discuss the stage in which such certificate has to be produced. This issue was raised and attempted to be clarified by the Hon’ble Madras High Court in K. Ramajayam v. Inspector of Police (hereinafter Ramajayam’s case) and the Hon’ble High Court of Delhi in Kundan Singh v. State(hereinafter Kundan’s case). It was held in these cases that it is necessary to provide this certificate (under Section 65B) only at the stage of giving evidence and not at the stage of collection of evidence.  

Further,  P.V.Anvar’s case did not annotate regarding Section 65B(4), which states that the certificate has 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)”. There were certain ambiguities as to who can be termed as a person occupying “official” position. This aspect was also clarified by the Delhi High Court and Madras High Court in Kundan Singh’s case and Ramajayam’s case respectively, that use of the word “officially” “is not intended to mean or be restricted to a person holding an office or employed in public capacity” but only refers to “a person primarily responsible for the management or the use, upkeep or operations of such device”.

The decision in P.V.Anvar’s case also created certain confusions in terms of the practical applications of the conditions set forth.  The decision mandated “all” the conditions under Section 65B(2) as well as Section 65B(4) to be complied with, for producing the certificate under Section 65B. The strict constructions of the clauses of Section 65B made it impossible to prove electronic records which are in possession of third parties, to be proved as electronic evidence. A similar issue arises in cases of electronic records recovered from accused persons, wherein the accused cannot be forced to give a certificate under section 65B. The decision in N. Banu & Ors v. State of Tamil Nadu of the Hon’ble Madras High Court was reflective of this issue, where the electronic records recovered from the accused persons could not be proved due to the mandate given under P.V.Anvar’s case.  

The shortcomings in the P.V.Anvar’s case were addressed subsequently in Shafhi Mohammad vs The State Of Himachal Pradesh (hereinafter Shafi’s case) whereby a division bench of the Hon’ble Apex Court, revived the position in Sandhu’s case that the certificate under Section 65B is “not mandatory.” The revival of Sandhu’s case clarified the legal position on the admissibility of the electronic evidence, especially by a party who is not in possession of the device from which the document is produced. Such parties cannot be required to produce certificates under Section 65B(4) of the Evidence Act. The applicability of the requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies. 

Though Shafi’s case successfully addressed the major conflicts in P.V.Anvar’s case, the misinterpretations in the latter with respect to the mandated conditions under Section 65B were left unaddressed. Further, the decision in Shafi’s case was in effect against the decision in P.V.Anvar’s Case, which was decided by a larger bench. This issue was subsequently identified in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (hereinafter Arjun’s case), wherein the Hon’ble Apex Court was pleased to observe that, in view of P.V.Anvar’s case, the pronouncement in Shafi’s case needs reconsideration and therefore referred the same to a larger bench.

The Hon’ble Supreme Court in Arjun’s case dealt with most of the issues addressed above. With respect to the admissibility of electronic records in the possession of third parties, the Hon’ble Apex Court has observed that the trial courts can invoke the certain provisions in the existing procedural laws to obtain certificates for electronic records from third parties. In this regard, The Apex Court while referring to 

  1. Section 165 of Indian Evidence Act. 

  2. Order XVI of the Civil Procedure Code, 1908 (“CPC”) 

  3. Section 91 of The Code of Criminal Procedure. 

Held that, 

“Thus, it is clear that the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it. 

44. Resultantly, the judgment dated 03.04.2018 of a Division Bench of this Court reported as (2018) 5 SCC 311, in following the law incorrectly laid down in Shafhi Mohammed (supra), must also be, and is hereby, overruled.”

In effect, The Hon’ble Supreme Court in Arjun’s case overruled the judgment in Ramajayam’s case with respect to evidence aliunde can be given through a person who was in charge of a computer device in the place of the requisite certificate under Section 65B(4) of the Evidence Act. By the decision in Arjun’s case, the Hon’ble Supreme court has strengthened the decision in P.V.Anwar’s case that a certificate under Section 65 B(4) is mandatory and a prerequisite for admitting an electronic record in evidence. With respect to the issue of electronic records in the possession of third parties,  a question that was raised Shafi's case, the Hon’ble Apex Court has provided recourse under Sec. 165 Indian Evidence Act, Order XVI of CPC and Section 91 CrPC. 
Though the Apex Court has addressed the issue of electronic records seized from third parties, the conundrum with respect to electronic records recovered from the accused person is left unaddressed.  The solution provided by the Hon’ble Apex Court with respect to records in possession of third parties cannot be applied to situations where the records are in possession of the accused person. The prosecution cannot file a petition or the trial court cannot suo moto order the accused under section 91 CrPC to produce the certificate under Section 65B Indian Evidence Act, for an electronic record recovered from the possession of the Accused. A Constitutional Bench of  The Hon’ble Apex Court in State of Gujarat v. Shyamlal Mohanlal Choksi has categorically held that an accused person cannot be compelled to produce any document under Section 91 CrPC. Though a warrant can be issued for search and seizure of incriminating materials from the possession of accused, the accused cannot be compelled to produce a document.  Any such compulsion would violate the fundamental right against Self-incrimination under Article 20(3)

Alternate Interpretations: 

The above series of decisions, progressively contradictory to each other is indicative of the fact that some alternate interpretations can be given to resolve the concerns pertaining to Section 65B. It is also inferred from the observations and discussions made by the Hon’ble Apex Court in the above cited judgements that, there is no ambiguity in proving electronic records by persons who are in control of the device which produced the electronic record. The said person can produce the certificate under Section 65B in accordance with P.V.Anvar’s case. The complication starts only in cases where the electronic records are held by persons who are “not” in control of the device which produced the electronic record or cases where accused persons cannot be forced to produce a certificate. Alternative interpretations to that of P.V.Anvar’s case are required only in such cases.

One such alternate interpretation was given in Shafi’s case, which was identical to Sandhu’s case in deciding that the provisions under section 65B is not mandatory in case of secondary pieces of evidence and provisions under section 65 can be taken into consideration even in cases of electronic records, in the absence of certificate under Section 65B.  Though said interpretation was categorically rejected in Arjun’s case, the Hon’ble Apex Court has left the issue of proving electronic records recovered from an accused unanswered. The Apex Court could have taken into consideration that the interpretation made in Shafi’s case could have been strengthened by a closer inspection of the provision under Section 65B (1), which reads follows, “65B. Admissibility of electronic records:-
(1) Notwithstanding anything contained in this Act, 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) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, 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.”

A plain reading of the above provision would show that a “computer output” will be deemed to be a “document” if the conditions mentioned in the section are satisfied. According to Section 62 of The Indian Evidence Act, the “Primary Evidence” means the “document” itself produced for the inspection of the Court.   Therefore the expression “deemed to be a document” can be read as “deemed to be a Primary Evidence”. In other words, according to Section 65B, a computer output which satisfies all the conditions under the said section will be elevated as a “Primary Evidence”. Though the deeming fiction under Section 65 B is recognized in the recent judgment in Arjun’s case, the discussion was restricted to analysing admissibility original electronic records as primary evidence without Section 65 B Certification. There is no discussion in respect of cases where the computed output does not satisfy the conditions under section 65B.  Such as the case of an electronic record recovered from the possession of an accused.
The Hon’ble Apex Court could have interpreted that in such cases, the deeming fiction will not be operative and therefore such electronic records will remain as a piece of “secondary evidence”, which could be proved under Section 65 of Indian Evidence Act 1872, as held in Sandhu’s and  Shafi’s Case.  If it can be admitted as “secondary evidence” without certification under Section 65 B of Evidence Act, all kinds of electronic records/outputs recovered from accused persons can also be admitted in Evidence.

Emphasises to “Any” :

  The major issue with P.V.Anvar’s case is the misinterpretation with respect to mandating all the conditions under Section 65B (2) and Section 65B(4) to be satisfied for production of a certificate under Section 65B.  The decision in P.V.Anvar’s case listed the conditions to be complied for the certificate by reproducing verbatim all the clauses under Section 65B(2) as well as Section 65B(4).  

In this regard, the Hon’ble Apex Court in Arjun’s Case took a view that “Here, “doing any of the following things...” must be read as doing all of the following things, it being well settled that the expression “any” can mean “all” given the context (see, for example, this Court’s judgments in Bansilal Agarwalla v. State of Bihar (1962) 1 SCR 331 and Om Parkash v. Union of India (2010) 4 SCC 172). This being the case, the conditions mentioned in sub-section (4) must also be interpreted as being cumulative.” 

An alternate interpretation in this regard may clear the predicaments pertaining to the admissibility of the electronic records recovered from accused persons. The provision under Section 65B(4) starts as “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,”, which indicates that the certificate has to do “any “ of the following three clauses and not “all” the three clauses. Therefore one can safely interpret that, the three clauses under Section 65B (4) provides for three kinds of certificates, in contrast with the interpretation in P.V.Anvar’s case, which provided for only one type of certificate.  The three kinds of certificates under Section 65 B(4) are

  1. identifying the electronic record containing the statement and describing the manner in which it was produced;

or 

  1. 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;

or

  1.  dealing with any of the matters to which the conditions mentioned in sub-section (2) relate

It is clear from the above that only sub-clause “c” pertains to matters to which clause (2) relates. It is also clear that there could be matters to which clause (2) may not relate. In cases of the former, certificate has to be produced under Sub-clause “c”, while in case of latter, the certificate can be produced under sub-clause “a’ or “b” of Section 65B(4). The legislative intent envisaged under Section 65B(4) merely requires (a) the statement to either identify the electronic record and the manner in which it is produced Or (b) give particulars of the device involved in its production to show that it is in fact produced by a computer. The third alternative is for proving as per Section 65B(2). This interpretation gains its significance in cases where computer outputs were held by third parties or recovered from the accused person. In such case certificates can be issued under Section 65B(4) (a) or (b) by third parties. 


Conclusion

As described above, the trial courts are often confronted with peculiar issues, which are difficult to be anticipated in advance. The statue and its interpretation by the Constitutional Courts should give sufficient scope for applying the provisions even in the most bizarre situations. The object behind all these procedural safeguards is to ensure the source and authenticity of the electronic record. Apart from ensuring the same, the procedure should not choke the mode of proving electronic evidence. A strict interpretation imposing multiple conditions, as in the case of P.V.Anvar’s & Arjun’s Case leads to obscurities and difficulties in proving computer output in certain situations. Though Hon’ble Apex Court in Arjun’s case reference has substantially clarified the issues pertaining to the admissibility of records which are in the possession of third parties and its certification under Section 65B, a pertinent of the question of admissibility of electronic records recovered from the accused person is left unaddressed. Considering the ever-growing dependence on technology for the effective administration of criminal justices system, it is imperative for the Hon’ble Apex Court to revisit and clarify the aspect of admissibility of electronic records recovered from the accused person.  The Apex Court should also be considerate of the fact that a purposive interpretation is required to provide sufficient space for encompassing and proving all sorts of electronic records under the ambit of the Indian Evidence Act 1872.

Some Notes on Electronic Evidence in India Today


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ABOUT THE AUTHOR


Ashwinkumar Arulaananthan

Experienced legal practitioner with a demonstrated history of being skilled in Criminal law, Cyber crimes & Property Disputes. Corporate Advisory Practice with respect to Criminal liabilities, Data Privacy & Cyber Security.

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