ELECTRONIC EVIDENCE AND ITS MYSTIFIED CHRONICLE OF ADMISSIBILITY: Will the Mystery Unfold?

Today, our days begin with an alarm clock buzzing on our smartphones and end with surfing on social media or chatting with friends and family on the same device. Our daily lives are becoming increasingly dependent on technology. Technology that is capable of retaining almost all data about our day-to-day activities. Such data, being saved electronically, is referred to as electronic data and can be utilized as evidence, which is referred to as electronic evidence.

The enactment of the Information Technology Act 2000 amended the Indian Evidence Act of 1872 and led to the addition of special provisions (namely sections 65A and 65B) in the act regarding the admissibility of electronic evidence. Since then, the judiciary has made several attempts at interpreting these provisions and yet the mystery stands still.

The Beginning of the Chronicle

Soon after the enactment of the IT Act 2000, the nation was shaken by a major terrorist attack on the Indian Parliament. The Parliament Attack Case was one of the first to address and answer the question of the admissibility of electronic records as evidence. When the case was being heard in Delhi Hight Court[1], the issue regarding admissibility of call records as electronic evidence was raised. The court’s opinion on the issue was rather abrupt, it was held that the certificate under section 65B (4) [2] was “merely an alternative mode of proof”. It was further stated that call records being computer output were considered to be secondary documentary evidence and oral testimony along with compliance of sections 65B (1) & 65B (2)2 was given a green signal.

When the same case moved to Supreme Court[3], it was held that the certificate under section 65B (4) [2] can be substituted with and considered as secondary evidence complying with sections 63 and 65 [2] respectively. Subsequently, the Navjot Sandhu case upheld the High Court’s decision, oral testimony for electronic evidence was permitted and the requirement of the certificate under Section 65B was stated to be not always mandatory.

Soon After, the issue of admissibility of electronic evidence turned into a discretionary practice rather than statutory. The court juggled between permitting oral testimony, relying on the principles of secondary evidence, and occasionally mandating certificates.

Series of Baffled Decisions

After a long wait, when a Supreme Court’s three-judge [4]bench addressed the same issue, it was expected to clear some air and finally bring an end to the diverse decisions.

The 2014 Anvar P.V. judgment overruled the 2006 Navjot Sandhu case3 and rightly acknowledged sections 65A & 65B2 as special provisions. It was held that:

1. Sections 63 and 65 do not apply to electronic records and sections 65A and 65B2 will take precedence over them as they are special provisions.
2. Sections 65A and 65B form a complete code for the admissibility of electronic records.
3. An electronic record as secondary evidence shall not be admitted unless the requirements of Section 65B are met. The requirement to produce a certificate is necessary.

Almost a year after this landmark decision, the Supreme Court in another 3-judge bench [5] contradicted the Anvar P.V judgement [4] . The 2015 judgment held that Section 65B is not a code but rather a procedural provision and it is not necessary to produce a certificate under sub-clause 4 of the provision.

Again, in the year 2017, there were two different 2-judge bench of the Supreme Court decisions giving two decisions that are poles apart. The first one [6]cited the Anvar PV judgment4 and held that call records are inadmissible without the certificate required under section 65B (4). The second one[7], on the other hand, stated that the Anvar PV judgment [4] was not clarified and held that “the question regarding the applicability (prospectively or retrospectively) of the provisions has been left open and it will be used to reopen or challenge the admissibility of evidence in pending trials where the requirements under section 65B were not complied with according to the bench.” Although these decisions are of a lower bench, they cannot overrule the Anvar PV judgment [4] , yet they leave an impact.

In 2018, the Supreme Court, in its another 2-judge bench [8]ruling held that Sections 65A and 65B [2] are just clarifying and procedural, and cannot be considered a comprehensive regulation. It was also stated that the procedural requirement of Section 65 B (4) [2] can be relaxed and exempted for the sake of justice provided a party is not in the possession of the device.

Summary of Key Supreme Court Decisions

The Game-Changing Landmark: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors.  [10]

After years of ambiguity, the Arjun Panditrao decision appeared to be the breath of fresh air needed to put the matter to rest. The Decision upheld Anvar P.V. Vs. P.K. Basheer [4] and overruled Tomaso Bruno and Anr. v. State of Uttar Pradesh [5] and Shafhi Mohammad v. State of Himachal Pradesh [8].

The Supreme Court held that:

• S. 65A & 65B form a comprehensive code governing the admissibility of electronic records as evidence.
  • In cases of secondary electronic evidence, the certificate is necessary.  
  • Not necessary in cases of Primary Evidence and Oral Testimony.

• The Certificate can be produced anytime during the proceeding or as directed by the court. Unless it does not result in serious or irreversible injury to the accused. (In cases of criminal trial)
• If a certificate cannot be produced, a judge has sufficient powers and jurisdiction to order the production of any document. (Section 165 – Evidence Act). Also, an application can always be made to a Judge for the production of such a certificate from the requisite person under Section 65B (4) in cases in which such person refuses to give it.

Ending Notes

Electronic evidence is extremely important in the investigation process, especially in today’s technologically driven environment. It has been a boon to society and the legal system, it does present its own set of challenges, the most significant being its admissibility. Instead of taking into account the special provisions i.e., Section 65A and 65B of the Indian Evidence Act 1872, the Indian courts have remained skeptical of them.

The Navjot Sandhu case [3] was an obvious legal error. The Anvar PV [4] decision was correct in law and a sound ruling. The Shafi Md. [8] Decision disregarded a well-established precedent, it cannot be considered good law since it violated some procedural norms established by common law.

The Arjun Panditrao [10] decision appeared to have solved a mystery, however, it may have unfolded another. There is no clarity on whether the Court must independently verify the authenticity of the electronic record in cases where the certificate is not given or remains defective even after an attempt, or if the party producing such electronic record is required to prove the same through expert evidence under Section 45A [2] .

To conclude, with time, the law must evolve to keep up with technological advancements.

[1] State v. Mohd. Afzal (2003) 107 DLT 385

[2] Indian Evidence Act 1872

[3] State (NCT of Delhi) Vs. Navjot Sandhu 8 (2005) 11 SCC 600

[4] Anvar P.V. Vs. P.K. Basheer and Others (2014) 10 SCC 473

[5] Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015) 7 SCC 178

[6] Harpal Singh @ Chhota v. State of Punjab (2017) 1 SCC 734

[7] Sonu v. State of Haryana (2017) 8 SCC 570

[8] Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801

[9] R.K Anand v. Delhi High Court (2009) 8SCC 106

[10] (2020) 7 SCC 1