Section 65B(4) Evidence Act: Despite SC Decision In 'Arjun Panditrao', Uncertainty Looms Around Electronic Evidence

On 14 July 2020, a three judge bench of the Supreme Court delivered its judgment in Arjun Panditrao Khotkar, in what ought to have been an authoritative ruling on the law on electronic evidence. The judgment is borne out of a reference made by a two judge bench in the same matter, by an order dated 26.07.2019. The reference was made to address the inconsistencies between the decisions of a two judge bench decision in Shafhi Mohammad (2018) and that of a three judge bench in Anvar PV (2014).

For context, Section 65-B, Indian Evidence Act, was introduced in the beginning of this millennium, at a time when information technology and consequently digital evidence was making inroads into the law. This provision sought to admit copies of electronic records (print outs, CDs etc) as documentary evidence in court proceedings, while ensuring the authenticity of such records. The provision incorporated conditions meant to ensure that the electronic device used to generate the evidence was in regular use, and in working order. To this end, the section provided for a certfiicate that would authenticate the electronic device and the record. Over the years, judicial pronouncements have primarily disagreed on whether this certificate is mandatory. One view is that stricter procedures (such as a mandatory certificate) would prevent against tampered evidence being introduced. A contrary perspective views the requirement of a mandatory certificate as adding unnecessary procedural roadblocks, leading to delays in the judicial process, and potentially excluding important pieces of evidence. In such circumstances, Arjun Panditrao sought to introduce clarity to the law on electronic evidence.

I argue that Arjun Panditrao's quest to bring clarity to the law, has raised more questions than it has answered. Arjun Panditrao has failed to consider all preceding judicial decisions while laying down the law. As a result it has widened the gap between two views - one that the certi cate is a mere procedural requirement and the other that it is at the root of admissibility of electronic records. Further the judgment contains several internal contradictions on issues such the stage at which such a certi cate ought to be produced. Overall, I argue that the longstanding judicial ambiguity around the admissibility of electronic evidence, may be a sign for the legislature to intervene and bring clarity to the law.

A background of judicial uncertainty

In 2014, a three judge bench in Anvar had overruled a previous judgment in Navjot Sandhu and held that electronic records were a class on their own and had to be proved only in accordance with the procedure in Section 65-B. Signi cantly, Anvar held the production of a certi cate under Section 65-B(4) to be a mandatory requirement for the admissibility of electronic evidence. Gradually the judiciary began to signal its discomfort with Anvar's pronouncement on the mandatory nature of a certi cate and viewed it as a technical impediment to the advancement of technological interventions in the legal system. A three judge bench in Tomaso Bruno, without reference to the judgment in Anvar held that the contents of an electronic record may also be proved under Section 65, Evidence Act, by treating it as ordinary secondary evidence. In 2018, a two judge bench in Shafhi Mohammad while relying on the judgment in Tomaso Bruno held that electronic evidence is admissible as long as it is "authentic and relevant" and deemed it t to relax the 'procedural requirement' of a certificate when the person adducing such electronic evidence was not in custody of the device.

The ruling in Arjun Panditrao

Considering the ambiguity surrounding the mandatory nature of the certificate, the Court in Arjun Panditrao has held Shafhi Mohammad to be bad law and overruled it for being in contravention of the decision of the three judge bench in Anvar. Further, the decision in Tomaso Bruno has been declared per incuriam due to its ignorance of the law set down by Anvar - a previously pronounced judgment of a co-equal bench. Rea rming the mandatory nature of the certificate, it is held that the certificate is a "condition precedent" to the admissibility of evidence by way of electronic record. To proffer solutions to the issue raised in Sha Mohammed regarding the di culty of producing a certificate by a party who is not in possession of an electronic device, the Court suggests that it is always possible for the trial court to exercise its power to summon the certificate from the requisite person. In fact, the opinion of Justice R.F. Nariman goes one step further, to place a positive obligation on the judge conducting the trial, to summon the certificate when an electronic record is produced in its absence.

Arjun Panditrao - the uncertainty continues

The Court's ruling in Arjun Panditrao leaves several key issues pertaining to the admissibility and appreciation of electronic evidence unaddressed in its wake. One major issue emerges from the decision of a two judge bench of the Supreme Court in Sonu v. State of Haryana where it was held that pleas regarding the admissibility of electronic records on grounds of non-production of the certificate under Section 65-B, could not be entertained before an appellate court, if an objection had not been taken before the trial court. This ruling was based on the nding that the requirements of Section 65-B merely pertained to issues of mode of proof, as opposed to inherent inadmissibility of the document, which issue could be considered by an appellate court as well. However, Arjun Panditrao's opinion that the mandatory certificate is a condition precedent and at the very core of the admissibility of electronic records casts doubt over the correctness of Sonu's categorization of the issue as a procedural requirement. Arjun Panditrao does not engage with this proposition set down in Sonu. Further, if it is the trial court's obligation to insist on the production of the 65-B certificate, the failure of the advocate to raise an objection regarding non-production (as required by Sonu) ought not to prejudice the objection at an appellate stage. The Court's failure to engage with Sonu and delve into the rami cations that its judgment has on the said issue, has perhaps opened the doors to future litigation.

Another issue the Court in Arjun Panditrao fails to deal with decisively is the relevant stage for the production of the certificate. On the one hand, the Court states that a party should ideally ensure that an electronic record, wherever possible, is accompanied by a certificate at the rst instance. In criminal trials, as a matter of 'general principle' and true to the spirit of Section 207, Code of Criminal Procedure, the trial court should insist that the certificate be produced along with the charge-sheet. Notably, this nding deviates from the Court's earlier view in State of Karnataka v. M.R. Hiremath that the certificate need not be produced with the charge-sheet and the need for the certificate arises during the production of evidence during trial. Having stated so, the Court shies away from laying down the law and instead holds that the trial court while exercising discretion, may in "appropriate cases" allow the prosecution to produce the certificate at a 'later point of time', while ensuring that the rights of the accused are not compromised. This position too, is later contradicted when the Court nally states that the certificate may be directed to be produced at any stage, before the completion of the trial. In practical terms, the judgment's failure to conclusively indicate the relevant stage for the production of the certificate, could lead to grave uncertainty in the procedures followed by the Trial Court in admitting electronic evidence. At what stage of the trial must the court draw a conclusion that the party is incapable of producing the certificate and thus step in to exercise its power to summon the certificate? As Abhinav Sekhri contends, this process could lead to trials being severely delayed due the pendency of applications for the production of the certificate.

The future of electronic evidence

If Tomaso Bruno was declared bad law for failing to follow the law laid down by a previous judgment of a co-equal bench, Arjun Panditrao, (being a three judge bench) was equally constrained from travelling beyond the law set out in Anvar. However, the desirability (or lack thereof) of a mandatory certificate under Section 65-B is still topical and does not end with Arjun Panditrao. The separate opinion of Justice V. Ramasubramanian contains pertinent observations on the possibly out-dated nature of Section 65-B, which in substantial part is a reproduction of the erstwhile Section 5, UK Civil Evidence Act, 1968, that stood repealed in 1995 (ten years before its introduction in India). Jurisdictions such as Canada presume the integrity of the computer device and the information generated therein and allow parties to adduce evidence to rebut such presumptions. On a whole, the trend has been towards allowing parties to introduce electronic evidence in trials more easily. There is a prevailing view amongst even the defence counsels that stringent procedural requirements such as a mandatory certificate, may hinder accused persons from relying on digital evidence that is potentially exculpatory.

The requirement of a certificate under Section 65-B as a precondition to the admissibility of electronic records, is rooted in the supposition that the process of creating a computer output (i.e. obtaining a print out, or creating a CD) continues for a large part to be susceptible to malfunctioning and tampering. The Supreme Court in Arjun Panditrao, instead of settling the judicial discordance on electronic evidence, has introduced more ambiguities in the law. One way or the other, it appears that until the legislature revisits the issue of the inherent trust-worthiness of electronic records, judicial pronouncements will oscillate between concerns of the authenticity of electronic evidence on the one hand (tampering, malfunctioning etc) and the ease of admitting electronic evidence, on the other.

Views are personal only.

Trisha Chandran is a Litigation Associate at Project 39A, National Law University, Delhi This article first appeared at LiveLaw.in and can be found here.