Is Certification Under Section 65B(4) Of Indian Evidence Act Mandatory For The Production Of Electronic Evidence?

In a recent judgement passed by the three-judge bench of the Supreme Court headed by Justice RF Nariman, S Ravindra Bhat, and V Ramasubramanium, the Supreme Court has clarified that certificate under Section 65B(4) of Indian Evidence Act,1872 is mandatory for the production of electronic evidence before the court.

The matter came from a reference made by the two-judge bench of the Supreme Court in the case of Arjun Panditrao Khotkar vs Kailas Khusanrao Gorantyal and Orswhen the matter of interpretation of Section 65B(4) of Evidence Act, 1872 came up before the bench due to the conflicting opinion in the previous two judgments of this court (Anvar P.V. vs. P.K. Basheerand Shafhi Mohammad vs. State of Himachal Pradesh). Hence, the two-judge bench in Arjun Panditrao case (Supra) vide its reference order dated 26.07.2019referred the matter to a larger bench for the settlement of the question.

The present case deals with two election petitions filed by the defeated candidate, one of the petitions were filed by Shri Kailash Kishan Rao Gorantyaland another by Vijay Chaudhary, an elector of the same constituency against the returned candidate Arjun PanditraoKhotkar of the Shiv Sena before the Bombay High Court under Section 80 and 81 of the Representation of the People Act, 1951. The respondents vide their petitions challenged the election of Appellant, Shri Arjun PanditraoKhotkar (The Returned Candidate, hereinafter referred to as the “RC”) to the Maharashtra State Legislative Assembly.

The subject matter of the case is a set of four nomination papers filed by the returned candidate. In their contentions before the court, the Respondents stated that the nomination papers were filed by the RC after the stipulated time of 3.00 p.m. on 27.09.2014. Since the nomination papers were not filed by the RC in accordance with the provisions of the law, the same shall be rejected on the same grounds. They further claimed that papers filed by the RC suffered from the defect of a substantial nature and the same were improperly accepted by the Returning Officer of the Election Commission namely SmtMutha (hereinafter referred to as the “RO”), based on which the election of the Returning Candidate should be declared void.

Respondents based their contentions on the video recording through the cameras placed inside and outside the office of returning officer’s office. The respondents made a claim that nominations were filed at 3.53 p.m. which is after the provided time duration. A complaint objecting the delay in filing of nomination papers by the RC was also made by one of the respondents before the RO on 28.09.2014 which was rejected by the RO on the same day.

Further, the High Court vide its order dated 16.03.2016 directed Election Commission to produce the entire record of the election in the concerned constituency. The record of the same was provided in the court. Similarly in the cross-examination of RO it was categorically stated that cameras were used to create an electronic record by the election commission and were used by the office. It was also brought on the record that on the first floor of the building, an arrangement was made by keeping electronic gazettes like VCR players, etc. and the arrangement was made for viewing the recording. It is already observed that under her instructions, the VCDs were marked for this recording. On the basis of her substantive evidence, the Bombay High Court held that the same can be treated as a compliance of the provisions mentioned in section 65-B of the Evidence Act. The High Court accepted the CDs/VCDs as valid evidence and held that the nomination forms of the RC were not properly accepted. Therefore, the election of the RC was declared void.

The RC, Shri Arjun Panditrao challenged the judgment of the High Court in an appeal before the two-judge bench of the Supreme Court. The RC in its appeal contended that the Bombay High Court erred by relying upon the Shafhi Mohammad judgment which is a two-judge bench judgement of this court and did wrong interpretation of the provision mentioned under Section 65B(4) of Evidence Act, 1872. Further, the appellant relied upon the earlier judgement of this court in Anvar P.V. which is a larger bench judgement to support his claim that certificate under Section 65B(4) is mandatory to make the electronic evidence admissible.

The two-judge bench of the Supreme Court hearing the appeal filed by the RC deemed it appropriate to refer the question to a larger bench of this court for interpretation.

The larger bench of the Supreme Court to whom the present matter was referred did not find any basis to change its finding in Anvar P.V. case, therefore it overruled its earlier judgment passed in the matter of Shafhi Mohammad vs. State of Himachal Pradesh case.

Ratio Decidendi Anvar P.V. vs. P.K. Basheer

The case was filed against the corrupt practices employed by the winning candidate at the time of election against which the complainant filed a plea to set aside the election. The complainant produced CDs which were comprised of songs, announcements, and speeches to support his claim, but he failed to secure the certificate under Section 65B(4) of Evidence Act.

For deciding the matter at hand, the three-judge bench of the Supreme Court looked into the language of Section 65B(4) dealing with the admissibility of electronic records. The provision says that if in any case, there is a need to give any statement related to any electronic evidence produced, then any of the following conditions must be satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

It was further clarified by the court that there must be a certificate accompanying the electronic evidence in which that person is required to state that the same is to the best of his knowledge and belief. These measures are taken by the court to ensure the source and authenticity of the electronic record. Electronic evidence can be easily tampered, altered with, hence, these safeguards prove to be very significant to ensure justice especially in the cases where the conclusion of the trial is based on the electronic records.

Section 65A of Evidence Act states that the contents of the electronic evidence may be proved in accordance with the provisions laid down in Section 65B. Therefore, only if the conditions specified under Section 65B of Evidence Act are satisfied, the electronic evidence can be relied upon by the courts and can be sent for the opinion of the examiner under Section 45A of Evidence Act. Section 65B being a special provision related to electronic evidence must be favoured over the general provisions contained in the act.

The court held that CDs, VCD, Chip produced in the court can be taken admissible only if the same is accompanied by a certificate under Section 65B of the Evidence Act. The electronic evidence will have no relevance and admissibility without that certificate. The court further said that without due certification of the secondary evidence, the authenticity of the electronic evidence in the form of CDs, VCD, Chip cannot be relied upon.

Ratio Decidendi in Shafhi Mohammad vs. State of Himachal Pradesh

In the aforementioned case, the admissibility of the video graphic evidence of the crime scene or the scene of recovery is important to strengthen the confidence in the evidence collected thereof. In, order to answer the same question, the Hon’ble Supreme Court interpreted the procedural aspects of admissibility and certificate of authenticity for the digital evidence covered under Section65B(4)of the Evidence Act, 1872.

While addressing the aforementioned questions, the court appreciated the advantages of the modern way of collection of evidence and to substantiate that, it relied upon judgements of Ram Singh and Ors. v. Col. Ram Singh, English Judgments in R. v. Maqsud Ali, and R. v. Robson, where they stated that depriving the law of evidence from the advantages of the modern way of collection of evidence in the form of electronic record would be a mistake, with respect to the authenticity of evidence. Caution and circumstances should be considered while assessing the evidence. It observed that the complete admissibility of the electronic evidence cannot be out ruled on the basis of technicality if the evidence is relevant.

The court further relied upon Tukaram S. Dighole v. Manikrao Shivaji Kokate and Anvar P.V. v. P.K. Basheer and Ors, for the susceptibility to tampering and admissibility of the electronic evidence. In Tukaram S. Dighole (Supra), the court observed that the modern day electronic evidences are susceptible to tampering and the standard of proof has to be more stringent than just a document. In Anvar P.V. (Supra), the court took into consideration that electric evidence by way of primary evidence is covered under Section 62 of the Evidence Act1872 to which procedures of Section 65B are not applicable. However, in Para 14 of the same judgement the court observed that the admissibility of the electronic evidence depends upon Section 65B.

The court further observed that Section 65A and 65B are procedural provisions. If the evidence is authentic and important to the case, the admissibility of such an evidence will depend on facts and circumstances of the case and the person submitting the evidence is in position to submitted the certificate required under Section65B (4). The court also observed that Section 65A and 65B cannot be considered the complete law for admissibility of the electronic evidence. In order to substantially understand the nature of electronic evidence, court also considered the definition of ‘document’ under Section 3 of the Evidence Act., definition of electronic record and data given under Section 2(t) and section 2(o) respectively of the IT, Act, 2000.

It will be denial to justice to the party who is in possession of the authentic evidence but failed to secure the certificate due to any genuine reason. Thus, it is not mandatory to adhere to the procedure provided under Section 65B(4) of Evidence Act in every case. The court may relax the procedural requirement and allow the party to submit the electronic evidence without the certificate in the interests of justice.

It was observed by this Hon’ble court in the present case that the certificate under Section 65B(4) is mandatory in order to make the electronic evidence admissible in the court. The three-judge bench of the Supreme Court observed that the position laid down in Shafhi Mohammad case which says that production of certificate is not mandatory if the person is not in the possession of the device from which the electronic record was produced, is wholly incorrect. The court based its finding on various provisions of Crpc and CPC, namely:

  • Section 91 of CrPC which deals with power of the judge conducting a criminal trial to order production of documents,
  • Section 165 of the CrPC which deals with the power of the judge to order production of documents to discover relevant facts,
  • Section 349 of CrPC which deals with the power of the judge to order imprisonment or commit a person to the custody of an officer of the court if he or she refuses to answer the questions put to him or to produce the documents in his possession without giving any reasonable excuse for such refusal,
  • Order XVI of the CPC which deals with “Summoning and Attendance of Witnesses”.

Relying upon the provisions mentioned above, the court rejected the major premise of Shafhi Mohammad case which says that producing certificate is not mandatory for the party who is not in the possession of the device used to produce the electronic record. An application can be made by the party before a judge for production of the certificate from the requisite person under the provisions of Evidence Act, CPC or CrPC when such person refuses to issue the certificate. Once the party has made an application before the court for production of the certificate and the court has ordered or summoned the requisite person to produce such certificate then the obligation of the party asking for the certificate is completed.

The court made a reference to two Latin maxims: first is lex non cogitadimpossibilia i.e. the law does not demand the impossible, and impotentiaexcusatlegem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused. Various judgements were referred by the court in which the maxims were followed after which the court came to the conclusion that although the provision under Section 65B(4) is mandatory, if the party has exercised all the options available to procure such certificate, which was to be issued by the third-party over which the party had no control, then in that case, the party must be relieved of the obligation to produce such certificate.

The court further added the provision that the party may produce the certificate under Section 65B(4) at a later stage as the language of the provision is silent on the time when the certificate is required to be produced. Referring to Anvar P.V., the court observed that the judgement nowhere mentions that such certificate must accompany the electronic record. Thus, when the party is not able to procure the certificate even after trying his best, the trial judge must summon the requisite person for production of certificate under Section 65B(4) of Evidence Act in such cases when the electronic record is produced without such certificate. In civil cases, this provision is subject to the decision passed by the court after giving due consideration to the facts of each case. Special regard should be given to the criminal cases which requires that the accused must be supplied with all documents relied upon by the prosecution before the commencement of the trial.

The court also observed that the production of certificate is not mandatory if the electronic evidence submitted is an original. The court reiterate that if an electronic evidence is recorded on an electronic device and the owner of the device testifies the same in the witness box then the requirement of the certificate under section 65B(4) is not mandatory, clarifying the stand of primary evidence in P.V. Anwar (Supra). Court also observed if the evidence is from a computer network that cannot be brought physically to the court then the certificate is mandatory.

That this Hon’ble court overruled the decision of the Madras High Court in K. Ramajyam, which states that evidence aliunde can be issued by a person who was in charge of a computer device in the place of the requisite person mentioned under Section 65B(4) of Evidence Act.

It was further observed by this Hon’ble court that the general directions are issued to the cellular companies and internet service providers which are required to maintain CDRs in consonance with Section 39 of the Evidence Act 1872 for a certain period of time in a segregated and secure manner if any record or CDR is seized during investigation in the said period. Such records can then be used by the concerned parties at the stage of defence evidence or for the purpose of cross-examination of a particular witness. These directions shall be applied in criminal trails, till the issuance of appropriate directions under relevant terms of the applicable licenses, or under Section 67C of IT Act, 2000.

The Hon’ble court said that in a conference of the Chief Justices of the High Courts, chaired by the Chief Justice of India, it was planned to draft rules relating to the reception of electronic evidence. The draft rules were formulated by the five-judge committee of the Judges of the Punjab and Haryana High Court which would serve as a model for adoption by High Courts. The Supreme Court in the present case ordered the examination of these draft rules by the concerned authorities in order to give them a statutory force.

This court did not find any error in the judgement of the High Court in the present case. The respondents requested several times to the Election Commission to issue the requisite certificate under Section 65B(4) of Evidence Act 1872. Even the order was made by the court directing the Election Commission to produce such certificate, still the Election Commission acted in a biased manner and favoured the Appellant. Apart from this, the High Court based its judgement after cross-examining the RO, Smt. Mutha which clearly falsifies the contention of the Returning Candidate that the nomination papers were filed by him on time.

Author: Yasharth Tripathi, a 2nd year student of National Law University and Judicial Academy Assam, Pratiksha Rawat Final year law student Amity Law School, Delhi, and Aishani Singh, Litigation Associate at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

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