Electronic evidence and its legal ramification in India

The Indian Evidence Act has been amended1 by virtue of Section 92 of Information Technology Act, 2000 (“Act”). Sec 3 of the Act2 was amended and the phrase “All documents produced for the inspection of the Court”were substituted by “All documents including electronic records produced for the inspection of the court”. Regarding the documentary evidence, in Section 59, for the words “Content of documents” the words “Content of Documents or Electronic records” have been substituted and Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence. The Act brought about the addition of section 65A and 65 B in the Evidence Act 1872 (“Evidence Act”) . Section 65B (1) serves two purposes: Firstly, it creates an exception to the “best evidence rule” by providing that a ‘computer output’ shall be admissible in law without the proof or production of the original. Secondly, it enables an electronic record which is either available in physical form, or stored in some audio-visual/electromagnetic form, to be “deemed to be a document” as mentioned in the Section 65B. However, Section 65B adds a requirement of a certificate to be attached with this deemed document if the same is to be submitted as evidence.

This requirement has been put by the legislature to safeguard the source and authenticity of the electronic record because such records are easily capable of being digitally altered, manipulated, faked, destroyed and recreated. However, there appears to be a judicial tussle regarding the fact that whether or not this certificate should be mandatory for the admission of electronic evidence.

The Facts:
Arjun Panditrao Khotkar was a returning candidate in the elections for Maharashtra Legislative Assembly for the term commencing November 2014. Two election petitions were filed by respondents against the election of Arjun Panditrao. The two elections petitions were filed by respondents consisting of defeated candidate Kailash Kishanrao Gorantya and Chaudhary who was an elector, respectively.

The respondents were relying upon CCTV footage which showed the interior and exterior premises of the office of the returning officer, with whom the nomination forms had been filed by the petitioner. Based on the CCTV footage, the respondents contended that the election was void due to delay in presentation of nomination forms. The Hon’ble Bombay High Court accepted the electronic evidence even in the absence of requisite 65-B certificate as it held that the testimony of the returning officer fulfilled the conditions of 65-B. On basis of said evidence the Hon’ble Court declared the election to be void.

The petitioner Arjun Panditrao filed an appeal against Bombay HC decision in the Supreme Court. Earlier, a Division Bench of the Supreme Court in Shafhi Mohammad v. State of Himachal Pradesh [(2018)2SCC801] had referred the question of admissibility of electronic evidence with relation to certificate under 65B of the Evidence Act to a larger bench in light of the recent three Judge Bench judgement in Anvar P.V. v. P.K. Basheer & Ors. [(2014)10SCC473}

The Ruling:

Ruling:
The Hon’ble SC upheld the judgement of the Bombay HC and held the election to be void. In its judgement, the Supreme Court held as such:

1. Certificate under 65B(4) of the Evidence Act is to be a condition precedent to the admissibility of electronic evidence and hence upholding the judgement in Anvar P.V and at the same time overruling Shafhi Mohammad.
2. Judgement in Tomaso Bruno v. State of U.P. [(2015)7SCC178] was declared per incuriam and held that Section 65A and 65B are procedural in nature and cannot be held to be a complete code on the subject. Additionally, it also held that requirement of certificate under Section 65B is not always mandatory. The Court perused the following maxims - lex non cogit ad impossibilia i.e. ‘the law does not demand the impossible’, and impotentia excusat legem i.e. ‘when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused’. The Supreme Court relied on a series of judgements that have applied this maxim in similar legal positions.
3. In situations where the person or authority does not comply with the request for the certificate, the parties can apply to the Court which may direct the said person to produce the certificate under Section 165 of the Evidence Act or Sections 91 and 349 of the CRPC, 1973 and even Order XVI of the Civil Procedure Code, 1908.
4. Section 65B creates a distinction between original document and the computer output containing such information. Original document is the original electronic record contained in the computer in which the original information is first stored and if the same is produced as a primary evidence, certificate under 65B is not needed. The same can be achieved if the owner of the electronic device (phone, laptop etc.) proves that he/she is the owner of the said device on which the original information is saved. On the other hand, when it is impossible to physically bring the device or system to the court as it happens to be a “computer network” or “computer system”, certificate u/s 65B is required for submission of electronic evidence.
5. Electronic evidence has to be furnished not later than the stage of the beginning of the trial. However, the exercise of power by courts in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused in a criminal trial

Comments:
As the suffering from the COVID-19 aliment continues and world reeks in the wrath of the deadly virus with thousand of cases burgeoning, mitigation seems blurred. Midst this, industries of the world be it tourism, news, hospitality etc. have been affected not leaving the legal industry behind. The age old archaic practice of court room litigation and dramatics now seem to shift over virtual platforms. Though prior to COVID-19 pandemic, the legal industry in India did take aid of artificial technology for better case managements, case hearing through VC, however, with the onset and rise of novel Corona Virus, the entire court system has gradually shifted to virtual hearings and litigation. The main question that is left to be analyzed is how successful would a complete introduction of a virtual technology in the justice delivery system and documents being executed by use of electronic platforms prove fruitful. Attorneys, law enforcement agencies administration etc are left to ponder upon question ranging to what extent virtual hearings/online dispute resolution make inroads and replace existing setups, the legalities involved in the production of e documents over such virtual hearings and how far do we see this system to a viable option. That midst introduction of virtual Court hearings in India the Supreme court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal clarified the interpretation relating to admissibility of evidence by way of electronic record. Whereby it held that the requirement of a certificate under Section 65B(4) is unnecessary if the original document itself is produced.

For the convenience the said section is reproduced below-
“(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doping any of the following things, that is to say –

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) 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;

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

There has been a shift of trend as regards admissiiblity of secondary evidences starting from The earliest notable decision of the Supreme Court in relation to admissibility of electronic records is State (NCT of Delhi) v. Navjot Sandhu3 , 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 vs P K Basheer4 (“Anvar”). In Anvar the supreme court categorically held that electronic records by way of secondary evidence shall not be admissible as evidence unless the requirements of Section – 65B are satisfied. Further, in 2017 the Surpeme Court in the case of Sonu vs State of Haryana5 tried to clraify the position with respect to admissiblity of electonic evidences and held “that an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B (4) of the Indian Evidence Act”. The said position again came up for consideration at the Supreme Court in Shafi Md vs State of HP6 wherein the surpeme court held that the applicability of procedural requirement under section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificates being in control of the said device and not of the opposite party. It was further held that in a case where electronic evidence is produced by a party who is not in possession of a device, such party cannot be required to produce certificate under section 65B(4) of the Evidence Act. It was further held that the applicability of requirement of the said certificate being procedural it can be relaxed by the Court whenever interest of justice so justifies.

But in the above said Arjun Panditrao (Supra), the Supreme Court of India settled the law by overruling Shafhi Mohammad (Supra) and declaring Tomaso judgement6 of the Supreme Court of India and upheld Anvar PV (Supra) with one alteration in paragraph 24 by deleting the words “under section 62 of the Evidence Act”. Hence, the law as on today with regard to admissibility of electronic record as evidence can be summarized as follows:

a) The required certificate under section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, 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.

b) In cases where the computer happens to be part of a computer system or computer network and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with section 65B(1), together with the requisite certificate under section 65B(4).

c) Hence, the certificate under section 65B(4) of the Evidence Act is mandatory and not procedural.

Indian Arbitration Act7 expressly excludes the applicability of Evidence Act to the arbitration proceedings and hence the above said requirement of filing a certificate under section 65B(4) does not arise with regard to electronic records produced as evidence in an arbitration proceeding