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(i) Evidence Act, 1872 (1 of 1872),  Section 65B(4) - Certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by  way of electronic record - Correctly held in Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473,  and incorrectly “clarified” in Shafhi Mohammad v. State of Himachal Pradesh (2018) 2  SCC 801.

Held, Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose. [Para 59]

Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 (a three Judge Bench decision) is the law declared by this Court on Section 65B of the Evidence Act.

Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015) 7 SCC 178, being per incuriam, does not  down the law correctly.

Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad v. State of Himachal Pradesh (2018) 2  SCC 801 (Division Bench)  and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled. #2020 SCeJ 1156 [Para 72]

 

(ii) Evidence Act, 1872 (1 of 1872),  Section 65B(4) - 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 - In cases where the “computer” happens to be a 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).

Held, the last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited. #2020 SCeJ 1156 [Para 72 (b)]

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(iii) Evidence Act, 1872 (1 of 1872),  Section 65B(4) - Cellular companies and internet service providers to maintain CDRs and other relevant records -  The general directions issued in paragraph 62 to cellular companies and internet service providers to maintain CDRs and other relevant records shall hereafter be followed by courts that deal with electronic evidence, to  ensure their preservation, and production of certificate at the  appropriate stage - These directions shall apply in all proceedings, till  rules and directions under Section 67C of the Information Technology  Act and data retention conditions are formulated for compliance by  telecom and internet service providers. 

Held, Directions contained in Para 62:

“ 62. To obviate this, general directions are issued to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act, which reads as follows: 

67C. Preservation and retention of information by intermediaries.– (1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe. 

(2) any intermediary who intentionally or knowingly contravenes the provisions of sub-section (1) shall be punished with an imprisonment for a term which may extend to three years and also be liable to fine.” 

                                             [Para 62]”

 

Held, Appropriate rules and directions should be framed in exercise  of the Information Technology Act, by exercising powers such as in  Section 67C, and also framing suitable rules for the retention of data  involved in trial of offences, their segregation, rules of chain of custody,  stamping and record maintenance, for the entire duration of trials and  appeals, and also in regard to preservation of the meta data to avoid  corruption. Likewise, appropriate rules for preservation, retrieval and  production of electronic record, should be framed as indicated earlier,  after considering the report of the Committee constituted by the Chief  Justices Conference in April, 2016. #2020 SCeJ 1156 [Para 72(d)]

 

(iv) Evidence Act, 1872 (1 of 1872),  Section 65B(1) – When does an electronic document become admissible  - The sub-section begins with a non-obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a “document” -  This deeming fiction only takes effect if the further conditions mentioned in the Section are satisfied in relation to both the information and the computer in question; and if such conditions are met, the “document” shall then be admissible in any proceedings -  The words “...without further proof or production of the original...” make it clear that once the deeming fiction is given effect by the fulfilment of the conditions mentioned in the Section, the “deemed document” now becomes admissible in evidence without further proof or production of the original as evidence of any contents of the original, or of any fact stated therein of which direct evidence would be admissible. #2020 SCeJ 1156 [Para 30]

 

(v) Evidence Act, 1872 (1 of 1872),  Section 65B(1) – “ original” document and “electronic record” contained in the “computer”  - Section 65B differentiates between the original information contained in the “computer” itself and copies made therefrom – The former being primary evidence, and the latter being secondary evidence  - It differentiates between the “original” document - which would be the original “electronic record” contained in the “computer” in which the original information is first stored - and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document

Held,  Certificate under  sub-section (4) is unnecessary if the original document itself is produced -  This can be done by the owner of a laptop computer, a 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 -  In cases where “the computer”, as defined, happens to be a part of a “computer system” or “computer network” (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). [Para 31, 32]

Held, this being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which reads as “...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act...”. This may more appropriately be read without the words “under Section 62 of the Evidence Act,...”. With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.

Vikram Singh and Anr. v. State of Punjab and Anr. (2017) 8 SCC 518, reiterated (where tape-recorded conversation contained in the original cassette was produced). [Para 32, 33]

Declaration of law in Tomaso Bruno (2015) 7 SCC 178, following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P.V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled. [Para 35]

Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010) 4 SCC 329 is also a judgment which does not deal with Section 65B. [Para 37]

Judgment in Shafhi Mohammad (2018) 5 SCC 311, states the law incorrectly and is in the teeth of the judgment in Anvar P.V. (supra), following the judgment in Tomaso Bruno (supra) - which has been held to be per incuriam hereinabove - the underlying reasoning of the difficulty of producing a certificate by a party who is not in possession of an electronic device is also wholly incorrect. The major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it. Resultantly, the judgment dated 03.04.2018 of a Division Bench of this Court reported as (2018) 5 SCC 311, in following the law incorrectly laid down in Shafhi Mohammed (supra), must also be, and is hereby, overruled.   [Para 39, 43, 44]

Decision of the Madras High Court in K. Ramajyam (supra), which states that evidence aliunde can be given through a person who was in-charge of a computer device in the place of  the requisite certificate under Section 65B(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly, overruled. #2020 SCeJ 1156 [Para 60]

 

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(vi) Evidence Act, 1872 (1 of 1872)   Section 65B(4) , 165  - Power of judge to order production of document / electronic record - Section 165 of the Evidence Act empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts -  Under Order XVI, R. 6, 7, 10  of the Civil Procedure Code, 1908 which deals with ‘Summoning and Attendance of Witnesses’, the Court can issue orders for the production of documents -  Under the Code of Criminal Procedure, 1973  the Judge conducting a criminal trial is empowered to issue the orders for production of documents under Section 91. [Para 40, 41, 42]

Held,

However, a caveat must be entered here. The facts of the present case show that despite all efforts made by the Respondents, both through the High Court and otherwise, to get the requisite certificate under Section 65B(4) of the Evidence Act from the authorities concerned, yet the authorities concerned wilfully refused, on some pretext or the other, to give such certificate. In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate. #2020 SCeJ 1156 [Para 45]

 

(vii) Evidence Act, 1872 (1 of 1872)   Section 65B(4) - Though Section 65B(4) is mandatory, yet, on the facts of this case, the Respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third-party over whom the Respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section. #2020 SCeJ 1156 [Para 49]

 

(ix) Legal Maxim – Lex non cogit ad impossibilia - Law impotentia excusat legam

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 maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.” Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edn. at pp. 162-163 and Craies on Statute Law 6th Edn. at p. 268).”  Referred in in Re: Presidential Poll (1974) 2 SCC 33. [Para 45]

Held, maxim non cogit ad impossibilia was applied in the context of the applicability of a mandatory provision of the Registration Act, 1908 - “6. We have to bear in mind two maxims of equity which are well settled, namely, actus curiae neminem gravabit — An act of the Court shall prejudice no man. In Broom's Legal Maxims, 10th Edn., 1939 at page 73 this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The above maxim should, however, be applied with caution. The other maxim is lex non cogit ad impossibilia (Broom's Legal Maxims — page 162) — The law does not compel a man to do that which he cannot possibly perform. The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases - Raj Kumar Dubey v. Tarapada Dey and Ors. (1987) 4 SCC 398#2020 SCeJ 1156 [Para 47]

 

(x) Evidence Act, 1872 (1 of 1872)   - Section 65B - Stage at which such certificate must be furnished to the Court -  Not provided in the Act. #2020 SCeJ 1156 [Para 54]

 

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(xi) Evidence Act, 1872 (1 of 1872),   Section 65B – Civil proceedings - Stage at which such certificate must be furnished to the Court -  In Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473, this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence -  This is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record -  However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons -  This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned - This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. #2020 SCeJ 1156 [Para 50]

 

(xii) Evidence Act, 1872 (1 of 1872),   Section 65B – CrPC, Section 207 - Criminal trial - Stage at which such certificate must be furnished to the Court -  The electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins - Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case - discretion to be exercised by the Court in accordance with law.  [Para 50, 54]

Held, in criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.  The stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet.   When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/final report have to be given to the accused. Section 207 of the CrPC, which is mandatory. Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.  In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. As recognised by this Court in Central Bureau of Investigation v. R.S. Pai (2002) 5 SCC 82, the only exception to this general rule is if the prosecution had ‘mistakenly’ not filed a document, the said document can be allowed to be placed on record.  [Para 52, 53]

Held further, therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 of the CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case - discretion to be exercised by the Court in accordance with law. [Para 54]

Held further,

Section 65B –  CrPC, Sections 91 or 311 - Evidence Act, Section 165 - In terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial -  Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused -  A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 of the CrPC or Section 165 of the Evidence Act - Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time - If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case - discretion to be exercised by the Court in accordance with law.  [Para 54]

Held further,

Subject to the caveat laid down in paragraphs 50 and 54 above, the law laid down in . Paras Jain v. State of Rajasthan 2015 SCC OnLine Raj 8331, Kundan Singh (supra), (Del.) has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence. Paras Jain v. State of Rajasthan 2015 SCC OnLine Raj 8331, Kundan Singh (supra), (Del.) Concurred. #2020 SCeJ 1156 [Para 57]

 

(xiii) Evidence Act, 1872 (1 of 1872), Section 65B(4) – Who can issue a certificate -  Person who gives this certificate can be anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device, as also the person who may otherwise be in the ‘management of relevant activities’ spoken of in Sub-section (4) of Section 65B - Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the “best of his knowledge and belief” (Obviously, the word “and” between knowledge and belief in Section 65B(4) must be read as “or”, as a person cannot testify to the best of his knowledge and belief at the same time). #2020 SCeJ 1156 [Para 58]

 

(xiv) Evidence Act, 1872 (1 of 1872)   Section 65B(4) - Criminal trial - General directions are issued to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period -  Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness -  This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act - License for Provision of Unified Access Services’ 2007, ‘License Agreement for Unified License’ and the ‘License Agreement for provision of internet service’ - Evidence Act, Section 39. [Para 62]

Held, it is relevant to note that the Department of Telecommunication’s license conditions [i.e. under the ‘License for Provision of Unified Access Services’ framed in 2007, as also the subsequent ‘License Agreement for Unified License’ and the ‘License Agreement for provision of internet service’] generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year. Therefore, if the police or other individuals (interested, or party to any form of litigation) fail to secure those records - or secure the records but fail to secure the certificate - within that period, the production of a post-dated certificate (i.e. one issued after commencement of the trial) would in all probability render the data unverifiable. This places the accused in a perilous position, as, in the event  the accused wishes to challenge the genuineness of this certificate by seeking the opinion of the Examiner of Electronic Evidence under Section 45A of the Evidence Act, the electronic record (i.e. the data as to call logs in the computer of the service provider) may be missing. #2020 SCeJ 1156 [Para 61]

 

(xv) Evidence Act, 1872 (1 of 1872), Section 65B(4) – Reception of electronic evidence –  “Draft Rules to serve as model for adoption by High Courts”. of the  five-Judge Committee to serve as model for adoption by High Courts - Draft Rules should be examined by the concerned authorities, with the object of giving them statutory force, to guide courts in regard to preservation and retrieval of electronic evidence. [Para 63]

Held, on 23 April 2016, the conference of the Chief Justices of the High Courts, chaired by the Chief Justice of India, resolved to create a uniform platform and guidelines governing the reception of electronic evidence. The Chief Justices of Punjab and Haryana and Delhi were required to constitute a committee to “frame Draft Rules to serve as model for adoption by High Courts”. A five-Judge Committee was accordingly constituted on 28 July, 2018[1]. After extensive deliberations, and meetings with several police, investigative and other agencies, the Committee finalised its report in November 2018. The report suggested comprehensive guidelines, and recommended their adoption for use in courts, across several categories of proceedings. The report also contained Draft Rules for the Reception, Retrieval, Authentication and Preservation of Electronic Records. In the opinion of the Court, these Draft Rules should be examined by the concerned authorities, with the object of giving them statutory force, to guide courts in regard to preservation and retrieval of electronic evidence. #2020 SCeJ 1156 [Para 63]

 

(xvi) Evidence Act, 1872 (1 of 1872), Section 65B – Need for change  - Major jurisdictions of the world have come to terms with the change of times and the development of technology and fine-tuned their legislations - Therefore, it is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu[2] to Anvar P.V.[3] to Tomaso Bruno[4] to Sonu[5] to Shafhi Mohammad.[6] [Per Justice V. Ramasubramanian] #2020 SCeJ 1156 [Para 45]

 



[1] The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv Narain Raina and R.K. Gauba, JJ. 

[2] State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600

[3] Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473

[4] Tomaso Bruno vs. State of UP, (2015) 7 SCC 178

[5] Sonu vs. State of Haryana, (2017) 8 SCC 570

[6] Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801 


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