Consider a case where an investigating officer recovers a compact disc from the
possession of an accused person during a search conducted in his house. The
Compact disc contains a vital conversation between two accused persons which
would conclusively prove the existence of conspiracy between them. However, the
investigating officer could not find the devices used for recording the
conversation and writing the compact disc. In such a case, is the compact disc
recovered from the possession of an accused person admissible in evidence during
In the light of a recent decision of the Hon'ble Apex Court in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantya
l [ii] (Arjun's Case)
an instinctive answer would be that, the compact disc is an electronic output
and therefore admissible if a certificate
under Section 65B Indian Evidence
Act 1872 (hereinafter Sec.65B) is obtained. However , the perplexing question
that follows is, when the flash drive is recovered from the possession of an
accused, who has to give certificate under Section 65B?
Interpretations of the Hon'ble Apex Court in the past two decades
The Hon'ble Apex Court in State (N.C.T. Of Delhi) vs Navjot [email protected] Afsan
[iii] (hereinafter Sandhu's Case) had the occasion for the first time to
examine Section 65 B with respect to its mandatory compliance. The Hon'ble Apex
Court in the said case held that, irrespective of the compliance of the
requirements of Section 65B, there is no bar for adducing secondary evidence
under the other provisions of the Evidence Act, namely Sections 63 & 65.
The Hon'ble Apex Court therefore diluted the provisions of Section 65B by making
it not mandatory
. The Judgement faced criticisms on the aspect that the Hon'ble
Supreme Court did not consider the non obstante clause of Section 65B and the
well settled principle of Generalia specialibus non derogant.
The criticisms in the Sandhu's case
were subsequntly addressed by a 3-Judges
bench of the Hon'ble Supreme Court in Anvar P.V vs P.K.Basheer & Ors[iv] (hereinafter
P.V.Anvar's Case). In the said case, the Apex Court overruled its previous
decision in Sandhu's case and categorically held that the Section 65 B of Indian
Evidence Act 1872, is a specially enacted provision and will override the other
general provisions under the Indian Evidence Act 1872.
The Apex Court further
held that, Primary Evidence with respect to electronic record is covered under
Section 62 of Evidence Act, while the Secondary Evidence with respect to
electronic record is covered exclusively under section 65B. The decision in P.V.
Anvar's case also provided a definite procedure and form in which the
certificate under Section 65B has to be produced. As per the said ruling, the
all conditions contemplated under Section 65B(2) as well as Section 65B(4) are
mandatory. The Hon'ble Apex Court also mandated that, without such a
certificate, secondary electronic record will not be admissible in evidence
under any other provision.
The ruling in P.V.Anvar's case
was unclear on various aspects, which lead to a
series of concerns indicated in various judgements of the Hon'ble Apex Court as
well as other High Courts. The decision was silent on the aspect of Prospective
Overruling which was identified and left open to be decided by a larger bench
by the Hon'ble Apex Court in Sonu @ Amar vs State Of Haryana
). The decision in P.V.Anvar's case also did not discuss the stage
in which such certificate has to be produced.
This issue was raised and
attempted to be clarified by the Hon'ble Madras High Court in K. Ramajayam v.
Inspector of Police
[vi] (hereinafter Ramajayam's case) and the Hon'ble High
Court of Delhi in Kundan Singh v. State
[vii] (hereinafter Kundan's case
). It was
held in these cases that it is necessary to provide this certificate (under
Section 65B) only at the stage of giving evidence and not at the stage of
collection of evidence.
Further, P.V.Anvar's case
did not annotate regarding Section 65B(4), which
states that the certificate has to be signed by a person occupying a
responsible official position in relation to the operation of the relevant
device or the management of the relevant activities (whichever is
There were certain ambiguities as to who can be termed as a
person occupying official
position. This aspect was also clarified by the
Delhi High Court and Madras High Court in Kundan Singh's case and Ramajayam's
case respectively, that use of the word officially
is not intended to mean or
be restricted to a person holding an office or employed in public capacity but
only refers to a person primarily responsible for the management or the use,
upkeep or operations of such device
The decision in P.V.Anvar's case also created certain confusions in terms of the
practical applications of the conditions set forth. The decision mandated all
the conditions under Section 65B(2) as well as Section 65B(4) to be complied
with, for producing the certificate under Section 65B. The strict constructions
of the clauses of Section 65B, made it impossible to prove electronic records
which are in possession of third parties, to be proved as electronic evidence. A
similar issue arises in cases of electronic records recovered from accused
persons, wherein the accused cannot be forced to give a certificate under
The decision in N. Banu & ors v. State of Tamil Nadu
[viii] of the
Hon'ble Madras High Court was reflective of this issue, where the electronic
records recovered from the accused persons could not be proved due to the
mandate given under P.V.Anvar's case.
The short comings in the P.V.Anvar's case
were addressed subsequently in
Mohammad vs The State Of Himachal Pradesh
[ix] (hereinafter Shafi's case
a division bench of the Hon'ble Apex Court, revived the position in Sandhu's
that the certificate under Section 65B is not mandatory
The revival of Sandhu's
case clarified the legal position on the admissibility of the electronic
evidence, especially by a party who is not in possession of the device from
which the document is produced. Such parties cannot be required to produce
certificates under Section 65B(4) of the Evidence Act. The applicability of the
requirement of certificate being procedural can be relaxed by the Court wherever
interest of justice so justifies.
Though Shafi's case successfully addressed the major conflicts in P.V.Anvar's
, the misinterpretations in the latter with respect to the mandated
conditions under Section 65B were left unaddressed. Further the decision in Shafi's
case was in effect against the decision in P.V.Anvar's Case, which was decided
by a larger bench . This issue was subsequently identified in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal
(hereinafter Arjun's case), wherein the
Hon'ble Apex Court was pleased to observe that, in view of P.V.Anvar's case,
the pronouncement in Shafi's case needs reconsideration and therefore referred
the same to a larger bench.
The Hon'ble Supreme Court in Arjun's case dealt with most of the issues
addressed above. With respect to admissibility of electronic records in the
possession of third parties, the Hon'ble Apex Court has observed that the trial
courts can invoke the certain provisions in the existing procedural laws to
obtain certificates for electronic records from third parties. In this regard,
The Apex Court while referring to:
- Section 165 of Indian Evidence Act.
- Order XVI of the Civil Procedure Code, 1908 (CPC)
- Section 91 of The Code of Criminal Procedure.
Thus, it is clear that 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.
44. 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.
In effect, The Hon'ble Supreme Court in Arjun's case overruled the judgment in Ramajayam's
case with respect to 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
By the decision in Arjun's case the Hon'ble Supreme court has strengthened the
decision in P.V.Anwar's case that a certificate under Section 65 B(4) is
mandatory and a pre requisite for admitting an electronic record in evidence.
With respect to the issue of electronic records in the possession of third
parties, a question that was raised shafi's case, the Hon'ble Apex Court has
provided recourse under Sec. 165 Indian Evidence Act, Order XVI of CPC and
Section 91 CrPC.
Though the Apex Court has addressed the issue of electronic records siezed from
third parties, the conundrum with respect to electronic records recovered from
the accused person is left unaddressed. The solution provided by the Hon'ble
Apex Court with respect to records in possession of third parties cannot be
applied to situations where the records are in possession of the accused person.
The prosecution cannot file a petition or the trial court cannot suo moto order
the accused under section 91 CrPC to produce the certificate under Section 65B
Indian Evidence Act, for an electronic record recovered from the possession of
A Constitutional Bench of The Hon'ble Apex Court in State of
Gujarat v. Shyamlal Mohanlal Choksi
[x] has categorically held that an accused
person cannot be compelled produce any document under Section 91 CrPC. Though a
warrant can be issued for search and seizure of incriminating materials from the
possession of accused, the accused cannot be compelled to produce a document.
Any such compulsion, would violate the fundamental right against Self
incrimination under Article 20(3)
The above series of decisions, progressively contradictory to each other is
indicative of the fact that some alternate interpretations can be given to
resolve the concerns pertaining to Section 65B. It is also inferred from the
observations and discussions made by the Hon'ble Apex Court in the above cited
judgements that, there is no ambiguity in proving electronic records by persons
who are in control of the device which produced the electronic record. The said
person can produce the certificate under Section 65B in accordance with P.V.Anvar's
The complication starts only in cases where the electronic records are
held by persons who are not in control of the device which produced the
electronic record or cases where accused persons cannot be forced to produce a
certificate. Alternative interpretations to that of P.V.Anvar's case are
required only in such cases.
One such alternate interpretation was given in Shafi's case, which was identical
to Sandhu's case
in deciding that the provisions under section 65B is not
mandatory in case of secondary evidences and provisions under section 65 can be
taken into consideration even in cases of electronic records, in the absence of
certificate under Section 65B. Though said interpretation was categorically
rejected in Arjun's case, the Hon'ble Apex Court has left the issue of proving
electronic records recovered from an accused unanswered.
The Apex Court could have taken into consideration that the interpretation made
in Shafi's case could have been strengthened by a closer inspection of the
provision under Section 65B (1), which reads follows, 65B.
Admissibility of electronic records:
- 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
A plain reading of the above provision would show that a computer output
be deemed to be a document
if the conditions mentioned in the section are
satisfied. According to Section 62 of The Indian Evidence Act, the Primary
means the document
itself produced for the inspection of the Court.
Therefore the expression deemed to be a document
can be read as
be a Primary Evidence
. In other words, according to Section 65B, a computer
output which satisfies all the conditions under the said section will be
elevated as a Primary Evidence
Though the deeming fiction under Section 65 B
is recognized in the recent judgment in Arjun's case, the discussion was
restricted to analysing admissibility original electronic records as primary
evidence without Section 65 B Certification. There is no discussion in respect
of cases where the compute output does not satisfy the conditions under section
65B. Such as the case of an electronic record recovered from the possession of
The Hon'ble Apex Court could have interpreted that in such cases, the deeming
fiction will not be operative and therefore such electronic records will remain
as a secondary evidence, which could be proved under Section 65 of Indian
Evidence Act 1872, as held in Sandhu's and Shafi's Case.
If it can be
admitted as secondary evidence without certification under Section 65 B of
Evidence Act, all kinds of electronic records/outputs recovered from accused
persons can also be admitted in Evidence.
Emphasises to Any :
The major issue with P.V.Anvar's case is the misinterpretation with
respect to mandating all the conditions under Section 65B (2) and Section 65B(4)
to be satisfied for production of certificate under Section 65B. The decision
in P.V.Anvar's case listed the conditions to be complied for the certificate by
reproducing verbatim all the clauses under Section 65B(2) as well as Section
In this regard, the Hon'ble Apex Court in Arjun's Case
took a view that, Here,
doing any of the following things... must be read as doing all of the
following things, it being well settled that the expression any can mean all
given the context (see, for example, this Court's judgments in Bansilal
Agarwalla v. State of Bihar
(1962) 1 SCR 331 and Om Parkash v. Union of India
(2010) 4 SCC 172). This being the case, the conditions mentioned in sub-section
(4) must also be interpreted as being cumulative.
An alternate interpretation in this regard may clear the predicaments
pertaining to admissibility of the electronic records recovered from accused
persons. The provision under Section 65B(4) starts as 4) In any proceedings
where it is desired to give a statement in evidence by virtue of this section, a
certificate doing any of the following things, that is to say, , which
indicates that the certificate has to do any of the following three clauses
and not all
the three clauses. Therefore one can safely interpret that, the
three clauses under Section 65B (4) provides for three kinds of certificates, in
contrast with the interpretation in P.V.Anvar's case, which provided for only
one type of certificate.
The three kinds of certificates under Section 65 B(4)
- identifying the electronic record containing the statement and
describing the manner in which it was produced;
- giving such particulars of any device involved in the production of that
electronic record as may be appropriate for the purpose of showing that the
electronic record was produced by a computer;
- dealing with any of the matters to which the conditions mentioned in
sub-section (2) relate
It is clear from the above that only sub clause c
pertains to matters to
which clause (2) relates. It is also clear that there could be matters
to which clause (2) may not relate. In cases of former, certificate has
to be produced under Sub clause c
, while in case of latter, certificate can be produced under sub
of Section 65B(4).
The legislative intent envisaged under
Section 65B(4) merely requires (a) the statement to either identify the
electronic record and the manner in which it is produced Or (b) give particulars
of the device involved in its production to show that it is in fact produced by
a computer. The third alternative is for proving as per Section 65B(2). This
interpretation gains its significance in cases where computer outputs were held
by third parties or recovered from the accused person. In such case certificates
can be issued under Section 65B(4) (a) or (b) by third parties.
As described above, the trial courts are often confronted with peculiar issues,
which are difficult to be anticipated in advance. The statue and its
interpretation by the Constitutional Courts should give sufficient scope for
applying the provisions even in the most bizarre situations. The object behind
all these procedure safeguards is to ensure the source and authenticity of the
electronic record. Apart from ensuring the same, the procedure should not choke
the mode of proving electronic evidence.
A strict interpretation imposing
multiple conditions, as in the case of P.V.Anvar's & Arjun's Case
obscurities and difficulties in proving computer output in certain situations.
Though Hon'ble Apex Court in Arjun's case reference has substantially clarified
the issues pertaining to admissibility of records which are in the possession of
third parties and its certification under Section 65B, a pertinent of question
of admissibility of electronic records recovered from the accused person is left
unaddressed. Considering the ever growing dependence on technology for effective
administration of criminal justices system, it is imperative for the Hon'ble
Apex Court to revisit and clarify the aspect of admissibility of electronic
records recovered from the accused person.
The Apex Court should also be
considerate of the fact that a purposive interpretation is required to provide a
sufficient space for encompassing and proving all sorts of electronic records
under the ambit of Indian Evidence Act 1872.
- View expressed by Mr.A.Ashwinkumar and Ms.Jagruthi Reddy, Advocates
practicing in Chennai and Bangalore.
- 2020 SCC OnLine SC 571
- (2005) 11 SCC 600
- (2014) 10 SCC 473
- (2017) 8 SCC 570
- 2016 SCC OnLine Mad 451
- 2015 SCC OnLine Del 13647.
- 2017 (2) LW(Crl) 1
- (2018) 2 SCC 801
- AIR 1965 SC 1251