Section 65B of the Indian Evidence Act, 1872: Requirements for admissibility of electronic evidence revisited by the Supreme Court

Background

A three-judge bench of the Supreme Court recently held that the requirement of a certificate under Section 65B(4) of the Indian Evidence Act, 1872 (“Evidence Act”), is a condition  precedent to the admissibility of electronic record in evidence.[1] This judgment arose from a reference by a Division Bench of the Supreme Court, which found that the Division Bench judgment in Shafhi Mohammad v. State of Himachal Pradesh[2] required reconsideration in view of the three-judge bench judgment in Anvar P.V. v. P.K. Basheer.[3]

Admissibility of electronic records under the Evidence Act

Under Section 65B(1), notwithstanding anything contained in the Evidence Act, any information contained in an electronic record, which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer is deemed to be a document (under the Evidence Act), if the conditions mentioned in Section 65B(2) are satisfied. If the conditions under Section 65B(2) are satisfied, the paper on which the information contained in an electronic record is printed, or the optical or magnetic media produced by the computer in which such information is stored, recorded or copied, shall be admissible in any proceedings, without 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..

Where a statement in evidence is sought to be given by virtue of Section 65B, Section 65B(4) requires a certificate to be produced that inter alia identifies the electronic record containing the statement and describes the manner in which it is produced, and gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, either 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.

Prior judicial interpretation of Section 65B

The earliest notable decision of the Supreme Court in relation to admissibility of electronic records is State (NCT of Delhi) v. Navjot Sandhu,[4] which held that irrespective of compliance with the requirements of Section 65B, there is no bar to adduce secondary evidence under Sections 63 and 65, of an electronic record. This judgment was overruled by the Supreme Court in Anvar (supra).

Anvar (supra) held that Sections 63 and 65 have no application to secondary evidence by way of electronic record as this is wholly governed by Sections 65A and 65B. The Court held that Sections 65A and 65B form a complete code when it comes to admissibility of information contained in electronic records, and an electronic record by way of secondary evidence shall not be admitted unless the requirements under Section 65B are satisfied, including a written certificate under Section 65B(4). It was further held that the Evidence Act does not contemplate or permit proof of an electronic record by oral evidence if the requirements under Section 65B are not complied with. However, if an electronic record is used as primary evidence under Section 62, the same is admissible in evidence, without compliance with the conditions specified in Section 65B.

Two decisions of the Supreme Court deviated from the position established in Anvar (supra). In Tomaso Bruno (supra), a three-judge bench of the Supreme Court held that secondary evidence of the contents of a document can be led under Section 65. However, in this judgment, the Supreme Court neither relied on Section 65B(4) nor on the law laid down in Anvar (supra). Instead, the Supreme Court relied on Navjot Sandhu (supra), which was specifically overruled in Anvar (supra).

Thereafter, in Shafhi Mohammad (supra), the Supreme Court held that the requirement of producing a certificate under Section 65B(4) is procedural and not always mandatory. A party who is not in possession of the device from which the document is produced cannot be required to produce a certificate under Section 65B(4). The Court was of the view that the procedural requirement under Section 65B(4) is to be applied only when electronic evidence is produced by a person who is in control of the said device, and therefore in a position to produce such a certificate. However, if the person is not in possession of the device, Sections 63 and 65 cannot be excluded.

The Supreme Court’s decision

The Supreme Court overruled Tomaso Bruno (supra) and Shafhi Mohammad (supra), and clarified the position as follows:

  • A certificate under Section 65B(4) is mandatory, and a condition precedent to the admissibility of evidence by way of electronic record.
  • The law laid down in Anvar (supra) need not be revisited. However, the last sentence in paragraph 24 of the said judgment which reads as “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 65-B of the Evidence Act” is to be read without the words “under Section 62 of the Evidence Act”.
  • The non-obstante language of Section 65B(1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf. Sections 62 and 65 are irrelevant for this purpose.
  • The requirement under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, tablet or even a mobile phone by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. Where the computer happens to be on a system or network and it is impossible to physically bring such system or network to court, then the only means of providing information contained in such electronic record is in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).
  • Oral evidence cannot suffice in place of a certificate under Section 65B(4) and evidence aliunde cannot be given by a person in charge of a computer device, in place of the requisite certificate under Section 65B(4).[5]
  • Where the requisite certificate has been sought from the person or the authority concerned, and the person or the authority concerned refuses to give such a certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions of the Evidence Act,[6] the Code of Civil Procedure, 1908[7] and/or Code of Criminal Procedure, 1973.[8] Once such an application is made to the court, and the court orders or directs that the requisite certificate be produced by the person to whom it sends summons in this regard, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.
  • The Court observed that Section 65B does not speak of the stage at which such a certificate must be furnished to the court. In Anvar (supra), the Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. This requirement is applicable in cases where such certificate could be procured by the person seeking to rely upon the electronic record. In cases where either a defective certificate is given, or where such certificate has been demanded and is not given by the concerned person, the court must summon the person referred to in Section 65B(4) and require that the certificate be given by such person(s). This ought to be done when the electronic record is produced in evidence before the court without the requisite certificate. In criminal cases, the requisite certificate can be directed to be produced by the court at any stage, as long as the trial is not over. Whilst these observations were made in the context of criminal cases, the Court noted that the aforesaid is subject to exercise of appropriate discretion in civil cases.
  • Given that the certificate under Section 65B(4) may be given long after the electronic record has actually been produced by the computer, it is sufficient that the certificate is either to the best of the issuer’s knowledge or belief.
  • The conditions under Sections 65B(2) and 65B(4) must be satisfied cumulatively.

In addition to the aforesaid, the Supreme Court issued general directions to cellular companies and internet service providers to maintain call detail records and other relevant records, for the concerned period, in a segregated and secure manner, if such record is seized during the investigation in the relevant period. Concerned parties can then summon such records at the stage of defence evidence or in the event such data is required to cross-examine a witness. The Supreme Court clarified that these directions (contained in paragraph 62 of the judgment) must be followed by the courts that deal with electronic evidence, to ensure the preservation of such evidence and the production of a certificate at the appropriate stage. The Court found this necessary given that telephone and internet service providers are generally required to preserve and maintain electronic call and internet log records for a limited duration of one year. If the police or other individuals fail to secure those records, or secure the records but fail to secure the certificate, within that period, the production of a certificate issued after commencement of trial would in all probability render the data unverifiable. An accused seeking to challenge the genuineness of a certificate under Section 65B(4) would be prejudiced as the electronic record may be missing.

The Supreme Court was of the further view that appropriate rules and directions should be framed under the Information Technology Act, 2000, including for the retention of data involved in trial of offences, their segregation, rules of chain of custody, and stamping and record maintenance, for the entire duration of trials and appeals, and also in relation to preservation of the meta data to avoid corruption. Appropriate rules for preservation, retrieval and production of electronic record, should be framed after considering the report of the Committee constituted, pursuant to the conference of Chief Justices held in April 2016.

Comment

This decision clears the air in relation to the conditions for admitting electronic evidence under the Evidence Act. The directions issued by the Supreme Court for formulation of much needed data retention guidelines are welcome insofar as, if implemented, they will improve the efficacy of criminal and investigative proceedings. Notably, the Respondents in the present case were relieved of the mandatory obligation under Section 65B(4), having taken all possible steps to procure the necessary certificate, which was to be given by a third party over whom the Respondents had no control. The Respondents in the present case made all efforts, through courts and otherwise, to procure the requisite certificate from the authorities concerned, but the authorities willfully refused to provide the certificate. This equitable consideration, afforded by the Court in an otherwise rigid statutory scheme for the admissibility of electronic records in evidence, is also welcome.

The Court also observed that whilst Section 65B is substantially derived from the Civil Evidence Act, 1968, of the UK, English law, no longer distinguishes between computer generated evidence and other evidence “either qua the admissibility of, or the attachment of weight to, such evidence”. This is supplemented by the concurring opinion of Justice V. Ramasubramanian, which undertakes extensive analysis of the position in other jurisdictions, including the US, UK and Canada. It remains to be seen whether the observations in the present judgment are taken note of and implemented in the Evidence Act, in the future.

[1] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571

[2] (2018) 2 SCC 801

[3] (2014) 10 SCC 473

[4] (2005) 11 SCC 600

[5] The Court overruled the Madras High Court’s decision in K. Ramajyam v. Inspector of Police (2016) Crl. LJ 1542, in this regard.

[6] Section 165 of the Evidence Act.

[7] Order XVI Rules 6, 7 and 10 of the Code of Civil Procedure, 1908.

[8] Section 91 and 349 of the Code of Criminal Procedure, 1973.