2022-02-02
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:
- 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.
- 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.
- 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.
- 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.
- 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
