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Dispelling the labyrinth of Electronic Evidence

Certi cate under Section 65B of Indian Evidence Act
Bar & Bench August 12 2019
 495

Pawan Reley and Sajal Awasthi

Documentary evidence under Chapter V of the Evidence Act, 1872 is of great importance during
the course of trial as the same is the primary piece of evidence. Sections 62 and 63 of the Indian
Evidence Act, 1872 deals with the admissibility of primary and secondary evidence respectively,
during the proceedings before a court.

There exists a perpetual dilemma as to the mode and manner of admissibility of electronic
evidence or records during the course of trial. The Supreme Court has often, through means of
various judicial pronouncements, tried to resolve this procedural dichotomy. However, recent
developments have shown the contrary intention of the Apex Court.

The recent judicial pronouncement of the Supreme Court in the case of Shafhi Mohammad v.
State of Himachal Pradesh has led to an increase in procedural uncertainty for the subordinate
courts as to what is the appropriate procedure for the admission and appreciation of electronic
evidence under Section 65B read with Section 62 and 63 of the Indian Evidence Act, 1872.

In the year 2005, the Full Bench of the Supreme Court dealt with the above-mentioned dilemma
in the case of State (NCT of Delhi) v. Navjot Sandhu & Ors. The Court, in that case, observed that
Section 63 of the Act means and includes, among other things, “copies made from the original by
mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with
such copies”.

Therefore, it concluded that irrespective of compliance with the requirements of Section 65B,
there is no bar to the admissibility of electronic evidence as secondary evidence under other
provisions of the Evidence Act.

The adoption of such an interpretation by the Supreme Court opened the ood gates for the
violation of the language and the intent behind Section 65B. In holding that the requirement of
production of an electronic evidence certi cate under Section 65B is not mandatory in nature,
the Supreme Court did injustice to the plain language of the aforesaid provision.

The use of the word “shall” and the presence of the non-obstante clause in sub-section (1) of
Section 65B makes the requirements of the same mandatory and obligatory in nature.
Furthermore, the legislative intent behind Section 65B comprehends the requirement of an
electronic certi cate to be essential in nature. The same cannot be dispensed with at the
convenience of the court.

The above-stated position remained the law of the land till 2014, when a full bench of the
Supreme Court revisited the position pertaining to the need of electronic evidence certi cate
under Section 65B of the Act, in the case of Anvar PV v. PK Basheer. In that case, the Court
adopted the stricto sensu approach and recti ed the error committed in the Navjot Sandhu case
by expressly overruling the same to extent of the statement of law on admissibility of secondary
evidence pertaining to electronic evidence. It held that the requirement of giving an electronic
certi cate under Section 65B pertaining to any electronic evidence or electronic record is
mandatory for treating such an evidence as admissible in law.

Thus, after the Anvar PV case, the position of law came to be well settled that any documentary
evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A,
can be proved only in accordance with the procedure prescribed under Section 65B.

The position in the  Anvar PV case was further relied upon by a Division Bench of the Supreme
Court in the case of Sonu v. State of Haryana. However, the Supreme Court distinguished the facts
of the Anwar PV Case from the facts of Sonu Case in relation to the stages of showing the
electronic certi cate. It was stated:

“26. That an electronic record is not admissible unless it is accompanied by a certi cate as
contemplated under Section 65B (4) of the Indian Evidence Act is no more res integra. The
question that falls for our consideration in this case is the permissibility of an objection
regarding inadmissibility at this stage…”

Ergo, the Supreme Court in the Sonu Case majorly relied on RVE Venkatachala Gounder v. Arulmigu
Visweswaraswami and provided clari cation regarding stages of raising the objections of not
producing the certi cate of electronic evidence. The same is provided as under:

“27. It is nobody’s case that CDRs which are a form of electronic record are not inherently
admissible in evidence. The objection is that they were marked before the Trial Court without a
certi cate as required by Section 65B (4). It is clear from the judgments referred to supra that an
objection relating to the mode or method of proof has to be raised at the time of marking of the
document as an exhibit and not later. The crucial test, as a rmed by this Court, is whether the
defect could have been cured at the stage of marking the document...

...if an objection was taken to the CDRs being marked without a certi cate, the Court could have
given the prosecution an opportunity to rectify the de ciency. It is also clear from the above
judgments that objections regarding admissibility of documents which are per se inadmissible
can be taken even at the appellate stage. Admissibility of a document which is inherently
inadmissible is an issue which can be taken up at the appellate stage because it is a
fundamental issue. The mode or method of proof is procedural and objections, if not taken at
the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are
permitted to be taken at the appellate stage by a party, the other side does not have an
opportunity of rectifying the de ciencies…”

It is to be noted that the dilemma was revived in the case of Shafhi Mohammad v. State of
Himachal Pradesh, wherein a Division Bench of the Supreme Court di ered from the  Anvar PV
case and held that the requirement of certi cate under Section 65B is not always mandatory and
can be dispensed with, in the interest of justice. The Supreme Court held as under:

“11. The applicability of procedural requirement under Section 65B(4) of the Evidence Act of
furnishing certi cate is to be applied only when such electronic evidence is produced by a person
who is in a position to produce such certi cate being in control of the said device and not of the
opposite party. In a case where electronic evidence is produced by a party who is not in
possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to
be excluded.

In such case, procedure under the said Sections can certainly be invoked. If this is not so
permitted, it will be denial of justice to the person who is in possession of authentic
evidence/witness but on account of manner of proving, such document is kept out of
consideration by the court in absence of certi cate under Section 65B(4) of the Evidence Act,
which party producing cannot possibly secure. Thus, requirement of certi cate under Section
65B(h) is not always mandatory…”

The judicial pronouncement in the Shafhi Mohammad case lost the sight of the well-settled
doctrine of stare decisis as laid down by the Supreme Court in various judgments. The larger
issue for consideration which arises in the Shah Mohammad case is whether a ruling of a
Division Bench of the Supreme Court is against or in contravention to the judgment rendered by
a larger bench of that very Court. The Supreme Court erred in law by placing its reliance upon
the case of Tomaso Bruno v. State of UP,  which in turn at para 25, had a rmed the approach
adopted by the Navjot Sandhu case.

The Court, while arriving at the conclusion in the Shafhi Mohammad case, lost the sight of the fact
that the law laid down in the Navjot Sandhu case was no longer good law and had been expressly
overruled in the full bench judgment of the Anvar PV case. Ergo, the law pertaining to electronic
evidence, as settled in the  Tomaso Bruno case, is equally bad in law and shouldn’t have been
relied on by the Supreme Court in the rst place.

The judgment in the Shafhi Mohammad case is clearly  per incuriam. The Supreme Court, in the
case of Roger Shashoua v. Mukesh Sharma, elucidated the well-settled principle of per incuriam
and observed to the e ect that:

 “A decision or judgement can also be per incuriam if it is not possible to reconcile its ratio with
that of a previously pronounced judgment of a co-equal or larger bench”.

The discipline demanded under Article 141 of the Constitution is of great importance as, without
it, the certainty of law and consistency of rulings would be a ected. It can be stated that the
Supreme Court ought to have reposed the statement of law as laid down in the Anvar PV
case. This would have prevented the reviving of the old dichotomy which was attempted to be
put to rest in the year 2014.
Therefore, the judicial pronouncement in the Shafhi Mohammad v. State of Himachal Pradesh calls
for serious reconsideration by a larger bench of the Supreme Court of India.

On July 26, 2019, the Supreme Court, in the case of Arun Pandit Rao Khotkar v Kailash Khusan Rao,
while understanding the gravity of the issue of electronic evidence, referred the Shafhi
Mohammad case for reconsideration in the light of Anvar PV.

However, it is to be noted that it is not only the law laid down in the  Shafhi Mohammad Case
which requires reconsideration, but also a few queries raised in the Sonu Case regarding the
prospective and retrospective applicability of the Anwar PV Case itself.

Pawan Reley is an advocate practicing at the Supreme Court of India. Sajal Awasthi is an
advocate practicing at the Delhi High Court. 
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