This post constitutes the second part of a three-post-series blog post dealing with the courtroom trend with respect to the development of jurisprudence with regard to the admissibility of electronic evidence.
This post (the second part) deals with the initial development of the jurisprudence on the admissibility of electronic evidence and pre-Anvar P.V. status. The first part dealt with the background and the problems with the admissibility of the electronic evidence where the author has given an account of the manifestation of the provision in brevity. The third part shall deal with the post-Anvar P.V. status of the provision and the current scenario and conclusion of the series.
One can trace the advent of the admissibility of electronic evidence and the surrounding debate from the case of, Som Prakash v. Sate of Delhi, where the Supreme Court of India observed the need of statutory change to include the electronic evidence. The court insinuated that denying such discoveries to be admitted in the court of law is crude and that a statutory change could help criminal trials.
“10. It is but meet that science-oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt.”
Later on, in the case of SIL Import v. Exim Aides Exporters, the apex court again promoted and encouraged the use of technology, by saying that when parliament is considering the advancement in technology while framing the laws then the courts in the country should not condone the usage of the same. And information from it should be included.
“15. Facsimile (or fax) is a way of sending handwritten or printed or typed material as well as pictures by wire or radio. In the West such mode of transmission came to wide use even way back in the late 1930s. By 1954 the International News Service began to use facsimile quite extensively. Technological advancement like facsimile, internet, e-mail etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament. So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modern devices and equipment already in vogue.”
These cases established a threshold of admissibility of electronic evidences to the courtroom. This was further substantiated in Grid Corporation of Orissa v. AES Corporation, the issue involved two arbitrators who had to sit together in order to appoint a third arbitrator. The court said that it is not necessary to meet the people in person, when it could be done through electronic means.
“23. enience of the parties and also saves them from avoidable expenditure. When an effective consultation can be achieved by resort to electronic media and remote conferencing it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties. The appointment need not necessarily be by a writing signed by the two arbitrators; it satisfies the requirement of law if the appointment (i) has been actually made, (ii) is preceded by such consultation as to amount to appointment by the two, and (iii) is communicated. It is not essential to the validity of the appointment that the parties should be consulted, or involved in the process of appointment or given a previous notice of the proposed appointment.”
Pre Anwar P.V. v. P.K. Basheer state
The very first instance of the case which required the admissibility of electronic evidence emerged in the case of, State v. Mohd. Afzal and Ors.. This case is also referred to as the parliament attack case and was further decided by the Supreme Court. The Delhi High Court, in this case, pronounced that, the data and information which are produced by a computer can be treated as electronic evidence and should be admitted. The only pre-requisite for the admissibility is that the evidence of this sort should adhere to the checklist provided in the provisions mentioned under section 65B of the Act.
In 2005, the Supreme Court had to decide upon the requirement of the certificate as mentioned under section 65B of the Act, for adducing the evidence. This was in the case of State v. Navjot Sandhu, where the court said, that the phone records can be admitted. In this case, the court did not consider the need for a certificate. It just said that the call records can be admitted as secondary evidence, under sections 63 and 65 of the Act. The provision for the requirement of a certificate is mentioned under section 65B. Further, the court said that if the certificate is not being provided, then also the evidence could be put forth in the court if it is a legitimate one and fulfils the requirements given under the section 63 and section 65.
“150. According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”
In Rakesh Kumar v. State, the Delhi High Court affirmed with the abovementioned decision of the apex court regarding the adducing of the call records as secondary evidence.
In State of Maharashtra v. Dr. Praful B. Desai, the court while turning the decision of the high court, allowed the witness to give the statement through video conferencing, and also spawned the advantages of the mode as follows:
“20. Recording of evidence by video-conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the accused. The accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded courtroom. They can observe his or her demeanour. In fact the facility to playback would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better. The facility of playback would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in court. All these objects would be fully met when evidence is recorded by video-conferencing. Thus no prejudice, of whatsoever nature, is caused to the accused. Of course, as set out hereinafter, evidence by video-conferencing has to be on some conditions”
The case of Avnish Bajaj v. State, was the case where the court had to look upon the question that what differences exist between ISP and CP. It did highlight that the police needs to be abreast with the changing times and that they need to get edified about the same. At the end, the court propounded that as the ISP was the accused in this case, therefore, the burden lies upon the ISP to provide the proof of its allegations and innocence.
In Abdul Rahman Kunji v. The State of West Bengal, the Calcutta High Court was deciding upon the admissibility of an email as electronic evidence. The court said that the witness’ statement could be admitted to ascertain the genuineness of the copy of the email as an evidence.
Therefore, we see that the court did not necessitate the requirement of the certificate until this stage and the admissibility of the electronic evidence was not contingent upon the certificate proving the authenticity of the evidence.
 Som Prakash v. State of Delhi, AIR 1974 SC 989.
 SIL Import v. Exim Aides Exporters, (1999) 4 SCC 567.
 Grid Corpn. of Orissa ltd. v. AES Corpn., 2002 AIR (SC) 3435.
 State v. Mohd. Afzal & Ors., (2003) DLT 385.
 State v. Navjot Sandhu, AIR 2005 SC 3820.
 Rakesh Kumar v. State, (2009) 163 DLT 658.
 State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601.
 Avnish Bajaj v. State, 2008 (105) DRJ 721.
 Abdul Rahman Kunji v. The State of West Bengal, (2015) 1 Cal LT 318.
ABOUT THE WRITER
Shivam Sharan is a third-year law student at NALSAR University of Law, Hyderabad. Although he has no particular area of interests as such in the legal field, but he likes to keep experimenting with new things and is open to edification by way of exploration. Apart from his work, he likes painting and listening to music.
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