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Electronic Evidence: The Unfertile Crop

Digital images are no different from the droplets of rain that fall, merge, and then divide: there is no telling whether the droplets that split are identical to the droplets that came together to form the larger droplet[2].

Law may be divided into substantive and procedural laws. The laws by which rights, duties and liabilities are defined are called substantive law whereas laws which prescribe mode by which application of substantive law is regulated are called procedural law. Law of Evidence is a judicial recognition to the system of logical reasoning. The Indian Evidence act, 1872 is a bunch of 167 sections divided into 11 chapters and 3 parts.

Part II, Chapter V is headed as of Documentary Evidence is of relevance for our discussion in this article. At the threshold, it is submitted that the proving of oral evidence are in contrast to the proving of documentary evidence.

The system of documentary evidence revolves around 3 check posts:
Relevancy, Admissibility and Prove.
There is no concrete rule for a documentary evidence as to which check post have to pass first and which check post to latter. Though the general practice is that the document has to pass the test of relevancy primarily before it went into check post of admissibility. Though there are situations which speak otherwise. For example, Section 68 of Evidence act which asked the attesting witness to be examined primarily before court went into test of relevancy and admissibility. Hence, Section 68 put prove as primary check post.

If Relevancy is a Horse, admissibility is chariot. Chariot cannot run without Horse. 65B is that exception which put chariot before Horse.

Section 65B is also one of those instances which make departure from general rule. Section 65B put admissibility as Primary check post. Thus, without ensuring compliance of 65B check post, the question of relevancy and prove cannot be looked into.

Document means any Information expressed on any substance for purpose of recording whereas Evidence means Oral Evidence and Documentary Evidence.

Section 61 states that the content of document can be proved either by primary evidence or secondary evidence.

Section 62 states where the document itself is produced then it would be considered as primary evidence. Section 63 read with Section 65 list out the circumstances under which content of a document can be proved by secondary evidence.

Electronic Evidence
With the advancement of technology, the production of electronic evidence is becoming common practice to secure the justice. At the same time it must not be forgotten that the electronic records are more vulnerable to tampering and alterations. Thus, electronic records cannot be looked upon with same standard as that of ordinary documentary evidence.

The Document though expressly does not include electronic evidence but the term documentary evidence does include electronic record by virtue of definition of Evidence and deeming fiction of Section 65B.

The term electronic evidence, computer, computer system and information have the same meaning as defined under Information technology act, 2000.

Section 22A states that the contents of electronic record cannot be proved unless the genuineness of electronic record is proved. Section 45A gives a defense to raise objection with respect to genuine of electronic record where opinion of expert would be a relevant. Section 65 makes a clear distinction between existence, condition and contents of documentary evidence.

Section 136 of Evidence act, 1872 has 3 parts where 2nd Part states that where a fact is to prove by another fact then the latter fact to be proved first. E.g. where the site plan of sale deed is to be proved then the sale deed is to be proved first. Section 65B is based upon II nd Part of Section 136 where content of electronic evidence can be proved if electronic evidence is proved first.

Section 65A and Section 65B starts with a marginal note as to special provision. Section 65A states content of Electronic record can be proved through compliance of Section 65B. Section 65B has 5 sub-sections where (1) to (3) list out conditions to be fulfill which largely revolve around the working conditions of computer during the period when electronic record is produced. Section 65B(4) which is of great controversy states that the person who is having responsibility of that device or the person who having responsibility of management of relevant activities of computer will give a statement on certificate.

The statement under certificate is best of his knowledge and belief. (This and to be read as OR)[1].

Controversy
The moot question would be whether this Certificate under Section 65B (4) is mandatory ? Also, Whether departure can be made if certificate could not be produced?

To answer this question, we need to look at the genesis from where Section 65B has taken its origin into Evidence act. Section 65B is exact reproduction of Section 5 of UK Civil Evidence act, 1968 with minor changes.

It is pertinent to note that when the IT Act, 2000 was in draft mode, this Section 5 of UK Civil Evidence act, 1968 (on which Section 65B is based) was repealed and replaced by UK Civil Evidence act, 1995. The Law commission who suggested the repeal of same has observed that there are largely two types of evidence Direct evidence and hearsay evidence and electronic evidence are more in nature of hearsay evidence due to current safeguards (i.e. Certificate + Conditions similar to Section 65B) which seem to be only illusionary and not real safeguards. However, despite such observations, law makers in India stuck to old repealed provisions of Section 5 of UK Evidence act, 1965 and incorporate the same under Section 65B of Indian Evidence act, 1872.

65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, 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

Section 65B(1) used the non-obstante clause which means the general rule with respect to documentary evidence cannot be used as a standard for electronic records. Section 65B(1) has made a clear recognition of Primary evidence and Secondary Evidence. In fact Section 65B has given sanctity to the secondary Evidence.

any information contained in electronic record means primary evidence. This means the electronic record where information is stored for the first time. E.g. where a video is record on a Mobile Phone or Laptop then the production of very mobile phone or laptop is primary evidence.

printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer means secondary evidence. Thus where the video recorded in Laptop/Mobile Phone is copied to Pen-drive/CD and submits to court then that very Pen-Drive/CD would be Secondary evidence.

This secondary evidence can be admissible only if the conditions of Section 65B are fulfilled and not otherwise. However, where the party itself produced the Primary Evidence (I.e. the laptop, mobile phone itself) then the operation of Section 65B is of no mandate because the document is proved by primary evidence itself.

The deeming fiction is added to Section 65B (1) because the definition of document do not expressly include electronic record.

Section 65A and 65B being a code in itself with respect to electronic record and thus in absence of compliance of them, the general standard of proving documentary evidence cannot be looked into.

However, the important question is what would be the consequence if the party, who has been asked by the court, could not produce the electronic evidence/ Certificate under 65B due to reason that the person in authority is not giving the certificate to party concerned for any reason.


To answer this situation, Two Latin maxims become important:
  1. first is lex non cogit ad impossibilia i.e. the law does not demand the impossible, and
  2. 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.
In Re Presidential Poll[2], the provisions were mandatory, which could not be satisfied owing to an act of God. The Court excused the mandatory provisions on account of these maxims.

These maxims have been applied by Indian courts also in different situations in:
  1. Chandra Kishore Jha v. Mahavir Prasad and Ors[3]
  2. Special Reference 1 of 2002[4] and
  3. Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors.
  4. Raj Kumar Dubey v. Tarapada Dey and Ors[5].

Section 165 of Evidence act, 1872 gives immense power to the court to ask any question in any form at any stage to any party/person concerned in litigation with a rider of self-incrimination. Section 91 of Crpc read with Section 311 Crpc gives party an opportunity to file an application before court to produce any document or thing to the court. Similarly, Order XVI Code of Civil Procedure, 1908 also entitle a party to file application before court praying production of any document/thing.

Section 65B does not talk about stage at which the certificate is to be submitted. Though, the general practice for submission is to produce it at the time of adducing the evidence. However, the justice delivery system is not having same standard for both civil and criminal trial. In a criminal trial, the accused must be provided with all the documents including electronic evidence before commencement of trial so that he would be able to prepare his defense which is essential for fair trial.

At the same time, Section 178 confers Police to submit the supplementary charge sheet with additional document including electronic records. Similarly, the parties can be application under Section 311 Crpc to allow production of any document including electronic evidence post trial. To plug in the abuse of process, Internet provider and cellular companies must adhere to the mandate of Section 67C of IT act, 2000 in tune with Section 39 of Evidence act to retain the data in segregated and separate form if it form part of an Investigation.

Hence, the court has to maintain the balancing between rights of accused and rights of prosecution while allowing compliance of Section 65B.

Hence, where despite all the efforts a party could not produce the certificate as required under Section 65B then the mandatory provisions of 65B can be excused for impossibility to perform by that party concerned. Alternatively, Court would order the production of certificate to the person in authority of same.

Present Judicial Position
In State (NCT of Delhi) v. Navjot Sandhu, two Judge bench 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.

In Anwar P.V. v. P.K. Basheer & Ors[6]. a three Judge Bench decision of this Court held that the requirement of Certificate under Section 65B is mandatory and overruled the judgment of Navtoj Sandhu to the extent of its observations on Section 65B.

In Vikram Singh and Anr. v. State of Punjab and Anr[7], a three-Judge Bench of this Court followed the law in Anvar P.V. (supra), clearly stating that where primary evidence in electronic form has been produced, no certificate under Section 65B would be necessary.

In Shafhi Mohammad v. State of Himachal Pradesh[8] , two judges bench held that whenever the interest of justice required, the requirement of a certificate could be done away with under Section 65B (4).

In Tomaso Bruno and Anr. v. State of Uttar Pradesh[9] 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.

Resting the controversy on 14th July 2020
In Arjun Panditrao Khotkar Judgment dated 14.07.2020[10] has made it crystal clear that:
In Anvar P.V. is the law declared by this Court on Section 65B of the Evidence Act is a correct law and The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.

Conclusion
  1. Section 65A & 65B contains a code in itself with respect to electronic evidence and is a mandatory requirement with respect to admissibility of electronic (documentary) evidence.
  2. Two situations where requirement of Section 65B need not to perform:
    1. Where primary evidence itself is produced
    2. Impossibility to produce the same.
  3. Section 65B requires relook by legislators[11].
  4. Legislator required coming up with a law regulating the data retention with respect to Section 67C of IT act, 2000[12].

Disclaimer
The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any agency of the Indian government. Examples of analysis performed within this article are only examples. They should not be utilized in real-world analytic products as they are based only on very limited and dated open source information. Assumptions made within the analysis are not reflective of the position of any Indian government State.

End-Notes:
  1. R.F. Nariman, J, PARA 23, Civil appeal No. 20825 of 2017
  2. (1974) 2 SCC 33
  3. (1999) 8 SCC 266 (at paragraphs 17 and 21)
  4. (2002) 8 SCC 237 (at paragraphs 130 and 151)
  5. (1987) 4 SCC 398
  6. (2014) 10 SCC 473
  7. 2017 8 SCC 518
  8. (2018) 2 SCC 801
  9. (2015) 7 SCC 178
  10. Civil appeal No. 20825 of 2017
  11. Ramasubarmanian J, PARA 45, Civil appeal No. 20825 of 2017
  12. R.F. Nariman, J, PARA 72, Civil appeal No. 20825 of 2017
  13. Stephen Mason, Electronic evidence and the meaning of original, 79 Amicus Curiae
    26 (2009)

Written By: CS Shubham Budhiraja, A Practicing company secretary and founder of Budhiraja & co. He is a Final year Law student at faculty of law, University of Delhi besides associated as Para Legal volunteer with Delhi State Legal Service authority and core member of moot court society of its college.
Ph no: +919654055315, Email: [email protected]

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