Admissibility of Electronic Evidence – Part III (Post-Anvar situation & development of jurisprudence)

This post constitutes the third and final 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.

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 second part dealt with the initial development of the jurisprudence on the admissibility of electronic evidence and pre-Anvar P.V. status. This post (the third part) deals with the post-Anvar P.V. status of the provision and the current scenario and conclusion of the series.

Ankur Chawla v. CBI[1], was the case where the High Court of Delhi decided upon the admissibility of audio and video clips in the form of a compact disc for this particular case and stated that it is inadmissible. The trial court admitted the electronic evidence in this case in an erroneous manner. In another case of Jagdeo Singh v. State[2], the court rejected the electronic evidence which was a compact disc, having the data of an intercepted phone call records, because they were not produced along with the certificate which is required by virtue of section 65B. In Sanjaysinh Ramrao v. D. G. Phalke[3], the court upheld the decision of the apex court in the case of Anvar P.V.v. P.K.Basheer[4], and said that since the recorder was not verified, therefore, the transcription and the translation of the recorded voice cannot be admitted as evidence. It pressed upon the question of the authenticity of the source.

In Anvar P.V.[5], the court acknowledged the addition of the special provision to the Act by way of an amendment, after the framing of the IT Act. This case is known for changing the plots in the courtroom, and is a landmark case, as in this judgment by a three-judge-bench, the court discussed about the reliability of secondary data and decided that the secondary data (all the electronic evidences) cannot be treated as admissible evidence unless they are accompanied by the certificate of which section 65B talks about. The certificate ascertains the authenticity of the evidence here. Thus, The case is known for its attempt in setting up the threshold for the admissibility of electronic evidence under section 65B of the Act.

The court also made a distinction in this case, by putting forth its reasoning for the treatment of CD as primary evidence and the recordings as secondary evidence. The court while making a distinction said that since the recordings are made using other electronic devices, therefore they have to be categorized under the head of secondary evidence, whereas, the compact discs are solely used in their very form and hence could be considered as a primary evidence. Later, the Rajasthan High Court adhering to the aforementioned distinction ruled that the recording done on a camera having an HDD can be considered as primary evidence and thus the applicability of section 65B will not be followed in this situation.[6] Therefore, it is imperative to make a distinction between the primary evidence and the secondary evidence in every case as this delineates the requirement of certificate and the provision under which the evidence can be admitted.

The court in the aforementioned case did bring the clarity regarding the electronic evidence and the need of certificate while adducing it, but it did not make it clear as to when are the certificates required precisely. Considering the procedural aspect of the Act, it is the basic rule that the courts cannot deny justice for any flaw in the adherence to the procedures. The whole idea of procedural law is to ease out the process of attainment of justice. The courts, in the cases, such as Paras Jain v. State of Rajasthan[7], and Kundan Singh v. State[8], have also pronounced the same. In both the cases, the Rajasthan High Court, and the Delhi High Court, respectively, said that, the certificate required for the admissibility of the secondary evidence in the form of electronic evidence could be provided at the later stage of trial initiation, post the charge sheet is filed, and this will not dilute its gravity and value.

23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced alongwith the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form.[9]

40. The computer output – when provisions of section 65-B are satisfied is treated as evidence of the contents of the original or facts therein of which direct evidence is admissible. The secondary evidence in the form of a paper print out or media output produced by copying, recording or storing files is treated as a document and are admissible and bear the same status as “direct evidence” on the question of admissibility. The provision, therefore, negates and does not require production of the original computer/equipment/media, on which the data was stored and from which computer output be it in the form of printed paper or optical or magnetic media data has been obtained. The expression “direct evidence” as strictly understood in the Evidence Act, has been explained below.

  1. Paragraph 21 quoted above records and notices that in State (NCT of Delhi)v. Navjot Sandhu alias Afzal Guru, (2005) 11 SCC 600, a responsible officer had certified the document at the time of production itself and the signatures in the certificate were also identified and, therefore, there was compliance of Section 65B of the Evidence Act. In these circumstances, we do not accept the legal ratio in Ankur Chawla v. Central Bureau of Investigation, (Crl. M.C. No. 2455/12 & Crl. M.A. Nos. 8308 and 8318/2014 and Crl. Rev. P. 385/2012 decided on 20th November, 2014 by the Delhi High Court) wherein it has been held that the certificate under Section 65B must be issued when the computer output was formally filed in the court and certificate under Section 65B cannot be produced when the evidence in form of electronic record is tendered in the court as evidence to be marked as an exhibit. The said certificate can be produced when the electronic record is to be admitted and taken on record, i.e., when the prosecution, defence or a party to the civil litigation wants the electronic record to be marked as an exhibit and read in evidence. As far back as 1931, the Lahore High Court in Baldeo Sahai v. Ram Chander, AIR 1931 Lahore 546 had stated:-

“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are resumed to the party who produced them with an endorsement thereon to that effect.”[10]

Essentially, the judgment in the Anvar P.V.[11], actually shed light upon the correct procedure of law and the manner in which the electronic evidence can be adduced. The importance of the certificate was made paramount, and courts around the country, heavily relied upon the rationale of this case. For instance, Bala Shaheb Gurling Todkari v. State of Maharashtra[12], Ankur Chawla[13], and D.G.Phalke[14], are few of the cases which relied their decisions upon the aforementioned Supreme Court judgment.

There have also been a plethora of cases where the Supreme Court itself along with the High Courts resorted to an alternate view regarding the admissibility of secondary evidence in form of electronic evidence. For instance, in the case of Thomas Bruno v. State of U.P.[15], the apex court cited the judgment given in the Navjot Sandhu[16] case, regarding the admissibility of electronic evidence. Though the court did not go against the ruling and the basic principle and rationale which the Anvar P.V.[17] case spawned.

The most recent view of the apex court on the debate surrounding the admissibility of the electronic evidence has relied upon the Anvar[18], judgment where the two-judge-bench of A.K.Goel J. and U.U.Lalit J., decided and said that, if a party is not in possession of the device responsible for the procurement of the information, then it is obvious that he will not be able to produce the required certificate, and hence, this cannot come in way of dissemination and impartation of justice. The decision was given considering the fact that the requirement of the certificate is only a procedural need and this cannot and should not be acting as a threat to justice delivery.

29. The applicability of procedural requirement under Section 65-B(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 certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(4) is not always mandatory[19]

This judgment seems per incuriam though, considering two factors essentially. One, the judgment being in contravention to the rationale which was provided in the relying case which necessitated the need of the certificate, and second, the bench strength is less than what it needs to be to overturn the decision.

Thus, the legal scenario post the Anvar P.V.[20] case seems quite incoherent to some extent but also welcoming as it widens the door for the admissibility of electronic evidence and brings down the threshold of the authenticity of the same, though with a caveat of scepticism attached to it regarding the proper implementation of this procedure, which cannot be done away with.

Conclusion

This seems quite obvious seeing the trend in which the court has expanded the ambit of the rule for the admissibility of the electronic evidence, that the court’s only motive is to impart justice in the best way possible so that none of the person could be denied of its right to justice. Also, this is not done blindly.

As seen from the development of the jurisprudence in the Indian scenario, there are a plethora of issues which revolve around the electronic evidence, such as the probability of it getting manipulated or the question of its genuineness. In such cases, the court had initially let the allowed the admission of the electronic evidence without much hassle and procedural safeguards. But subsequent to the increasing usage of technology, and framing of the IT Act, there was an amendment brought into the Act. The court interpreted this amendment in a strict sense in order to not let the justice delivered to the wrong person.

It should always be remembered that the Act is applicable to civil as well as criminal matter in a non-bias manner. The evidence adduced does not ascertain the validity of the information in any manner. The burden of proof lies on the accused and on the person who is adducing the evidence, regarding the fact that how valid is the content of the evidence procured.

Over the years, the court has raised the bar for admissibility of electronic evidence in a gradual manner. The requirement of the certificate was made mandatory, and the adherence to the requirements enlisted under the provision of section 65B was necessitated for an electronic evidence to be made admissible. This has been a step much appreciated as this prevents the abuse of the concept of the electronic evidence. The reason for this is also to safeguard the interest of any single innocent person, as it would be extremely unjust if any innocent person is denied justice due to the admissibility of flawed evidence.

The judgments by Supreme Court have made the rule a stricter one over the years and have well delineated the jurisprudence in this arena for the welfare of all. It cannot be alleged that the apex court did not consider the daily scenario which a common mass might face in such regards. The most recent case of Shafhi Mohammad v. State of Himachal Pradesh[21], is an example par excellence for this. The court relaxed the requirement of the certificate in certain scenario where a common man might just be unable to adduce it due to the absence of possession of the device. At the same time, this case also elucidates that the court itself is not certain regarding the usage and implementation of the procedure, as has been mentioned already. Therefore, the trend over the years, according to the pronouncements and interpretation of the provisions related to the admissibility of the electronic evidence has been pretty relaxed yet a strict one. The Courts have always been inclined towards incorporating the needs of changing time and technology along with the need of the people, for justice dissemination.

[1] Ankur Chawla v. CBI, 2014 SCC OnLine Del 6461.

[2] Jagdeo Singh v. State, Crl. A. Nos. 527, 529 and 607 of 2014.

[3] Sanjaysinh Ramrao v. D.G.Phalke, (2015) 3 SCC 123.

[4] Arnav P.V. v. P.K.Basheer, AIR 2015 SC 180.

[5] Id.

[6] Preeti Jain v. Kunal Jain, AIR 2016 Raj 153.

[7] Paras Jain v. State of Rajasthan, (2016) 2 RLW 945 (Raj).

[8] Kundan Singh v. State, 2015 SCC OnLine Del 13647.

[9] Supra 27.

[10] Supra 28.

[11] Supra 24.

[12] Bala Saheb Gurling Todkari v. State of Maharashtra, 2015 SCC OnLine Bom 3360.

[13] Supra 21.

[14] Supra 23.

[15] Thomas Bruno v. State of U.P., (2015) 7 SCC 178.

[16] Supra 14.

[17] Supra 24.

[18] Supra 24.

[19] Shafhi Mohammad v. state of Himachal Pradesh, (2018) 1 SCC (Cri) 860.

[20] Supra 24.

[21] Id.


ABOUT THE WRITER

Shivam Sharan

IMG_20180605_102806_156

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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