Mandating Certificates for Admissibility of Electronic Evidence under Section 65B of The Evidence Act

Pic Credits – internetvibes.net

Introduction

The Hon’ble Supreme Court, in the recent judgment passed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors[1] (‘Arjun Panditrao Khotkar’) has once again tried to settle the waters muddled by the differing opinions of the High Courts and, in some cases, Supreme Court itself on the question of ‘whether the certificate under S. 65B(4) of The Indian Evidence Act, 1872 is mandatory as a condition precedent for the admissibility of the electronic records as evidence?’ The Hon’ble Supreme Court was posed with this issue in the reference made for reconsideration of the judgment of a division bench in Shafhi Mohammad v. State of Himachal Pradesh[2] (‘Shafhi Mohammad’) and in the light of the previous judgment passed by a three-judge bench of the Supreme Court in Anvar P.V. v. P.K. Basheer and Ors[3] (‘Anvar P.V’).

The Government of India enacted The Information Technology Act, (Act 21 of 2000) (‘IT Act’) in an effort to remain aligned with technological advancements. Through this, terms such as ‘Computer’, ‘Data’, ‘Electronic Record’ etc. were defined legally for the first time. By early 2000, India had achieved fair amount usage of computers and ancillaries in day to day activities – be it government offices, corporates or even for personal usage. It was imperative to include such data and electronic records, so produced by computers, as a part of the court proceedings as and when required. With the IT Act, there were amendments made to certain other legislations, one being The Indian Evidence Act, 1872 (‘Act’) and as a result S. 65B was introduced amongst other amendments to the Act.

Under the Act, a document can be proved by either producing the original before the court, as primary evidence, or by producing a copy of the original, as secondary evidence. The legal position after this judgment is that any information printed on paper or recorded on CD/DVDs or USB drives from a computer would be considered as secondary evidence, while that information as such on the computer itself would be the primary evidence. S. 65B treats electronic records as a separate class of document under the Act, as evident from the language of the section and the unamended definition of ‘Document’ under S. 3 of the Act. Moreover, an electronic record can be deemed to be a document and be admissible as evidence only if it fulfils certain conditions under S. 65B. Electronic records are highly susceptible to manipulation and these conditions act as a safeguard against the possibility of manipulation of electronic records. S. 65B further attempts to ensure the reliability of the statements made regarding the electronic documents admitted as evidence by directing the person responsible for the operation of the computer to issue a certificate regarding the production of such electronic record, identification of the electronic record and device(s) used in the production etc. It is this certificate which has been troubling the courts to form a consensus.

Revisiting the Supreme Court’s Jurisprudence

A division bench of the Hon’ble Supreme Court in Shafhi Mohammad, relying upon Tomaso Bruno vs State of Uttar Pradesh[4] (‘Tomaso Bruno’), had ruled that in cases where a party is not in possession of the device by which the electronic evidence was produced, such party can be dispensed with the obligation to produce a certificate under S. 65B; hence the requirement of the certificate is not ‘always’ mandatory. However, a three-judge bench of the Hon’ble Supreme Court, in an earlier judgment of Anvar P.V., had held that unless the electronic evidence is presented before the court as primary evidence, such electronic evidence is not admissible without furnishing a certificate. In this recent case of Arjun Panditrao Khotkar, the Hon’ble Supreme Court held that the certificate under S. 65B is a condition precedent for the admissibility of electronic evidence, and consequently overruled Shafhi Mohammad and declared Tomaso Bruno per incuriam.

The reasoning behind Shafhi Mohammad was based on the inability of a party to procure the certificate as it was not in possession of the device, whereas in Anvar P.V., the party admittedly did not produce the certificate without a cogent reason and as a result, Hon’ble Supreme Court held that the electronic evidence could not be taken on record. In Anvar P.V., the Hon’ble Supreme Court proceeded on the premise that an electronic record will be primary evidence as long as it remains on a computer and if possible, such record can be produced before the court as primary evidence. However, the moment the same electronic evidence is printed on a paper or copied on an optical or magnetic device; it becomes secondary evidence. This same premise was endorsed in Arjun Panditrao Khotkar and finds support in S. 65 of the Act, wherein, a party can adduce secondary evidence in case the original is of such nature which cannot be easily produced before the court. However, in Anvar P.V., circumstances of Shafhi Mohammad were neither argued nor contemplated by the Hon’ble Supreme Court.

The Hon’ble Supreme Court in a definitive manner, attempted to interpret S. 65B in Arjun Panditrao Khotkar. It was clarified and reiterated that the certificate under S. 65B is a condition precedent for an electronic record to be admitted as evidence. The conditions laid down in Sections 65B (2) and 65B (4) are cumulative and each of the conditions has to be satisfied. The Hon’ble Supreme Court considered the circumstances of the Shafhi Mohammad and held that in case a party during the trial is unable to procure the certificate, which is to be issued by a third party, the court must step in and summon the person(s) responsible under S. 65B (4).

In Arjun Panditrao Khotkar, on the side-lines, the Hon’ble Supreme Court had also opined on the aspect of maintaining call detail records (‘CDR’) by telecom companies and internet use log by internet service providers (‘ISP’) in certain events. Now, ISPs and telecom companies are required to maintain the usage details for a period of 1 year as per License Agreement for Provision of Unified Access Services and License Agreement for Unified License. The Hon’ble Supreme Court observed that in case a party or the police fail to obtain the records of the relevant time or fail to obtain the certificate before the commencement of trial, it would render the electronic records unverified. If the party seeks to verify the genuineness of the electronic records as per the certificate by an expert under S. 45A, the usage data, sought to be verified, might not available with the ISP or the telecom company. Thus, ISPs and telecom companies are directed to maintain internet usage records and CDRs for the relevant period, seized during investigation during the relevant period, in a segregated and secure manner. However, these directions are limited to criminal trials only and are subject to the changes in the relevant provisions of the licensing agreements or under S. 67C of the IT Act. In this manner, the Hon’ble Supreme Court has tried to plug all the possible holes in the interpretation of S. 65B of the Act.

Analysis

One contention remains unclear in the above premise – Can a certificate issued by the person responsible for operation of the device which produced the electronic record, be relied upon to determine the admissibility of such electronic record? According to the author, it should be answered in negative. The certificate under S. 65B requires the person issuing it to make bare minimum declarations, which is not enough to measure the authenticity of the electronic records at the first instance. Take for example, conditions enumerated in S. 65B(2), which are the sole criteria to decide whether an electronic record can be considered as document, viz., (a) the document was produced during the ordinary course of processing information by the computer(s); (b) during such period similar information was fed into the computer; (c) the computer(s) was working properly throughout such period; and (d) the information is of the same kind as the information supplied to the computer in the ordinary course of the activities being carried out. The bare reading of these conditions makes it apparent that it does not take in account the scope of manipulation of the electronic record.

This problem is sought to be mitigated by the certificate, wherein the person making such a certificate, is an officer responsible for the operation of the device or the management of the relevant activities. Such officer has to identify the electronic record, state the manner in which it is produced and the device, if any, other than the computer used in the process, to the best of his/her knowledge and belief. This instance of issuance of a certificate poses two conditions (i) electronic documents were produced by the parties to the proceedings, and same is in possession of the computer which produced such electronic document; or (ii) a third party who is responsible for operation or management of the device used for the production of the electronic record. The certificate can be produced under the first condition by either of the parties who is in possession of the computer device or it may not be required at all as per the ratio of Arjun Panditrao Khotkar. However, the real difficulty lies in the second condition, wherein the certificate is to be issued by a third party; be it an individual, a corporate or government functionary. S. 65B (4) does not take into account a situation where an individual at the relevant time of production of the electronic record is no longer traceable or the person so responsible for the operation or management of the computer(s) is no longer engaged with the corporate or government functionary, who at the relevant time may have made some manipulation to the electronic record. Irrespective of this, the Hon’ble Supreme Court has tried to make the certificate as a sacrosanct document and even proceeded to hold a certificate issued by a person, who later assumes the official position, responsible for operation or management of the device used to produce the document. The Hon’ble Supreme Court held as under:

“…Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B (4) makes it clear that it is sufficient that such person gives the requisite certificate to the “best of his knowledge and belief…”

But, a certificate issued by any other person instead of the person who was responsible for operation or management of the device used for production of the electronic document at the relevant time would render the whole exercise of certificate futile. It can be argued that aspect of keeping a check on of the manipulation of the electronic document was never the effect of certificates issued under S. 65B, rather it puts one more step in the way of a litigant to reach to the doors of justice.

The problem a court would face in admitting an electronic document as evidence without the certificate is another point which may be analysed. It is upon the court to ultimately decide the reliability of such electronic document, with or without the certificate, in the same way as any other documentary evidence. The author argues that the issue of admissibility of the electronic records by courts, as evidence, can be linked to the interpretation of electronic records as secondary evidence as opposed to primary evidence. Moreover, the questions posed as to the reliability of the electronic evidence can always be referred for an expert opinion under S. 45A of the Act. Considering this futility of a certificate under the Act, Justice V. Ramasubramanian in Arjun Panditrao Khotkar, had given a separate concurring judgment which expressed anxiety over the purpose served by S. 65B in the present scenario by drawing a comparison between the treatments of electronic records as evidence by other common law jurisdictions. He opined as:

It will be clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine-tuned 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.”

It is imperative to mention here that S. 65B is pari-materia to the now repealed, S. 5 of the Civil Evidence Act, 1968 of the United Kingdom. S. 5 was repealed by the Civil Evidence Act, 1995, whereby the peculiar distinction between electronic records as documentary evidence and other documents was erased, as the definition of ‘Record’ and ‘Document’ covers documents and records in all forms. The rationale behind dispensing with such distinction was based on the technology of the relevant time. During the enactment of Civil Evidence Act, 1968, technology used in computers was still in incubation and reliability of computer outputs was a major concern. But, as technology evolved, the reliability of computers reached to a satisfactory level and scope of error in output was narrow to none. As discussed above, the condition precedents of S. 65B pertains to the information being fed into computers and the resultant output of that information; it does not take in account the scope of the manipulation to the electronic document.

Conclusion

The Hon’ble Supreme Court has settled the position regarding the certificate under S. 65B of the Evidence Act, that the certificate is sine qua non to place electronic record as evidence before the court, however, a person may be dispensed with the requirement to produce the certificate for placing electronic records as evidence if that person is possession of the computer device used for producing such electronic record, and present such computer device itself for the court to inspect, for any other situation the certificate is mandatory. The purpose behind such a certificate was never to eliminate the inherent possibilities of manipulation associated with electronic records (which is rather impossible by way of a certificate); it was only to ensure that the computer device was functioning properly and there were no technical or mechanical errors while taking the output from such device. The procurement of certificate only adds one more procedural step in the process of litigation, and the Hon’ble Supreme Court proceeded to further add another judicial exercise. Now, when a party is not able to procure the certificate from the third party, the court shall summon such third party and require that such certificate be issued to the party to the proceedings. Technology has evolved many folds since the introduction of the S. 65B, and what was relevant and necessary at that time, has ended up merely being a procedural requirement. The evolution of technology warrants a parallel evolution of court’s jurisprudence as well.

(This post has been authored by Avesh Chaudhary. Avesh is an independent legal practitioner based out of New Delhi, practicing in various legal fora)

References

  1. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors, Civil Appeal No. 20825-20826 of 2017.
  2. Shafhi Mohammad v. State of Himachal Pradesh AIR 2018 SC 714
  3. Anvar P.V. v. P.K. Basheer and Ors AIR 2015 SC 180
  4. Tomaso Bruno v. State of Uttar Pradesh Civil Appeal No. 142 of 2015

Cite as: Avesh Chaudhary,  ‘Mandating Certificates for Admissibility of Electronic Evidence Under Section 65B of the Evidence Act’ (The Contemporary Law Forum, 04 September 2020) <https://tclf.in/2020/09/04/mandating-certificates-for-admissibility-of-electronic-evidence-under-section-65b-of-the-evidence-act> date of access.  

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