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Section 65B(4) Evidence Act :

Despite SC Decision In 'Arjun
Panditrao', Uncertainty Looms
FULL VIDEO -
Around Electronic Evidence Justice VR
Krishna Iyer
Trisha Chandran 22 July 2020 8:00 AM Memorial Lecture

SHARE THIS - By Justice

Nageswara Rao
 LAW + MORE

FIRMS

Dua Associates
Represents
Hughes
Communications
(HCIPL) In JV
On 14 July 2020, a three judge bench of the Supreme Court
Formation With
delivered its judgment in Arjun Panditrao Khotkar, in what BhartiAirtel
Limited
ought to have been an authoritative ruling on the law on

electronic evidence. The judgment is borne out of a reference + MORE

LATEST
made by a two judge bench in the same matter, by an order NEWS

dated 26.07.2019. The reference was made to address the

inconsistencies between the decisions of a two judge bench 1 Cryptic &

Casual Bail
decision in Shafhi Mohammad (2018) and that of a three Orders
Without
judge bench in Anvar PV (2014).
Relevant
Reasons
For context, Section 65-B, Indian Evidence Act, was Liable To Be
introduced in the beginning of this millennium, at a time Set Aside :
when information technology and consequently digital Supreme
Court
evidence was making inroads into the law. This provision

sought to admit copies of electronic records (print outs, CDs

2 'Reference
Wrong
To
etc) as documentary evidence in court proceedings, while
Provision, As
ensuring the authenticity of such records. The provision Long As
incorporated conditions meant to ensure that the electronic Power Exists
Would Not
device used to generate the evidence was in regular use, and Matter':
in working order. To this end, the section provided for a Supreme
Court On
certificate that would authenticate the electronic device and Maintainability
the record. Over the years, judicial pronouncements have Of Appeal
Under Section
primarily disagreed on whether this certificate is mandatory. 34 Instead Of
One view is that stricter procedures (such as a mandatory Section 37
Arbitration Act
certificate) would prevent against tampered evidence being

introduced. A contrary perspective views the requirement of

3 Can't
Entertain
a mandatory certificate as adding unnecessary procedural
Plea For
roadblocks, leading to delays in the judicial process, and Conducting
DNA Test Of
potentially excluding important pieces of evidence. In such
A Person
circumstances, Arjun Panditrao sought to introduce clarity to Unless His
Birth
the law on electronic evidence.
Documents/
School
I argue that Arjun Panditrao's quest to bring clarity to the law, Records Are
Under
has raised more questions than it has answered. Arjun Challenge:
Panditrao has failed to consider all preceding judicial Tripura High
Court
decisions while laying down the law. As a result it has

widened the gap between two views - one that the certificate
4 AAwaited
Long
is a mere procedural requirement and the other that it is at
Reform
the root of admissibility of electronic records. Further the

judgment contains several internal contradictions on issues

5 Mall Can't
Collect Car
such the stage at which such a certificate ought to be
Parking Fee :
produced. Overall, I argue that the longstanding judicial Kerala High
Court Makes
ambiguity around the admissibility of electronic evidence,
Prima Facie
may be a sign for the legislature to intervene and bring clarity View In Lulu
Mall Case
to the law.

A background of judicial uncertainty

6 Conviction
With Aid Of
In 2014, a three judge bench in Anvar had overruled a Section 149
IPC
previous judgment in Navjot Sandhu and held that electronic
Unsustainable
records were a class on their own and had to be proved only When Co-
Accused Are
in accordance with the procedure in Section 65-B. Acquitted
Significantly, Anvar held the production of a certificate under Making
Section 65-B(4) to be a mandatory requirement for the Membership
Of 'Unlawful
admissibility of electronic evidence. Gradually the judiciary Assembly'
began to signal its discomfort with Anvar's pronouncement Less Than 5
And There Are
on the mandatory nature of a certificate and viewed it as a No
technical impediment to the advancement of technological Unidentified
Accused :
interventions in the legal system. A three judge bench in Supreme
Tomaso Bruno, without reference to the judgment in Anvar Court

held that the contents of an electronic record may also be

proved under Section 65, Evidence Act, by treating it as 7 AtCOVID-19

Home

ordinary secondary evidence. In 2018, a two judge bench in Vaccine

Booster
Shafhi Mohammad while relying on the judgment in Tomaso Jabs For
Senior
Bruno held that electronic evidence is admissible as long as
Citizens:
it is "authentic and relevant" and deemed it fit to relax the Uttarakhand
High Court
'procedural requirement' of a certificate when the person
Directs State
adducing such electronic evidence was not in custody of the

device.
8 Karnataka
High Court
The ruling in Arjun Panditrao Asks State
To Strictly
Considering the ambiguity surrounding the mandatory nature Implement
SOP Banning
of the certificate, the Court in Arjun Panditrao has held Shafhi Rallies,
Mohammad to be bad law and overruled it for being in Dharnas
Amid Covid
contravention of the decision of the three judge bench in Surge
Anvar. Further, the decision in Tomaso Bruno has been
लाइव लॉ + MORE
declared per incuriam due to its ignorance of the law set
हिं दी
down by Anvar - a previously pronounced judgment of a co-

equal bench. Reaffirming the mandatory nature of the

certificate, it is held that the certificate is a "condition

precedent" to the admissibility of evidence by way of

सुप्रीम कोर्ट ने 80 साल
electronic record. To proffer solutions to the issue raised in से अधिक उम्र के
कै दियों की समयपूर्व
Shafi Mohammed regarding the difficulty of producing a
रिहाई की नीति पर यूपी
certificate by a party who is not in possession of an सरकार से जवाब मांगा
electronic device, the Court suggests that it is always

possible for the trial court to exercise its power to summon

the certificate from the requisite person. In fact, the opinion

of Justice R.F. Nariman goes one step further, to place a

सुरक्षा की दृष्टि से
positive obligation on the judge conducting the trial, to गहनों की कस्टडी लेना
आईपीसी की धारा
summon the certificate when an electronic record is
498ए के तहत क्रू रता
produced in its absence. नहीं : सुप्रीम कोर्ट

Arjun Panditrao - the uncertainty continues

The Court's ruling in Arjun Panditrao leaves several key

issues pertaining to the admissibility and appreciation of

electronic evidence unaddressed in its wake. One major

'अदालत में अभद्र
issue emerges from the decision of a two judge bench of the
व्यवहार से किसी
Supreme Court in Sonu v. State of Haryana where it was held वकील को फायदा नहीं
हुआ, इससे वह वादी
that pleas regarding the admissibility of electronic records on
का मामला खराब ही
grounds of non-production of the certificate under Section करता है': हाईकोर्ट में

65-B, could not be entertained before an appellate court, if an दुर्व्यवहार करने वाले
वकील से सुप्रीम कोर्ट
objection had not been taken before the trial court. This
ने कहा
ruling was based on the finding that the requirements of

Section 65-B merely pertained to issues of mode of proof, as

opposed to inherent inadmissibility of the document, which

issue could be considered by an appellate court as well.

आर्टि कल 226 -
However, Arjun Panditrao's opinion that the mandatory हाईकोर्ट को रिट

certificate is a condition precedent and at the very core of याचिका का निपटारा

करते समय चुनौती देने
the admissibility of electronic records casts doubt over the
के आधार पर अपना
correctness of Sonu's categorization of the issue as a दिमाग लगाना चाहिए:
सुप्रीम कोर्ट
procedural requirement. Arjun Panditrao does not engage

with this proposition set down in Sonu. Further, if it is the trial

court's obligation to insist on the production of the 65-B

certificate, the failure of the advocate to raise an objection

regarding non-production (as required by Sonu) ought not to

अनुच्छेद 227 -
prejudice the objection at an appellate stage. The Court's
पर्यवेक्षी क्षेत्राधिकार
failure to engage with Sonu and delve into the ramifications हर त्रुटि को ठीक करने
के लिए नहीं है जब
that its judgment has on the said issue, has perhaps opened
अंतिम निष्कर्ष उचित है:
the doors to future litigation. सुप्रीम कोर्ट

Another issue the Court in Arjun Panditrao fails to deal with + MORE
INTERNATIONAL
decisively is the relevant stage for the production of the

certificate. On the one hand, the Court states that a party

1 Judicial
Commission
should ideally ensure that an electronic record, wherever Of Pakistan
possible, is accompanied by a certificate at the first instance. Recommends
Elevation Of
In criminal trials, as a matter of 'general principle' and true to Justice
the spirit of Section 207, Code of Criminal Procedure, the trial Ayesha Malik
As First
court should insist that the certificate be produced along Female
with the charge-sheet. Notably, this finding deviates from the Judge Of
Supreme
Court's earlier view in State of Karnataka v. M.R. Hiremath Court
that the certificate need not be produced with the charge-

sheet and the need for the certificate arises during the 2 Myanmar
Court
production of evidence during trial. Having stated so, the Sentences
Ousted
Court shies away from laying down the law and instead holds Leader Aung
that the trial court while exercising discretion, may in San Suu Kyi
To 4 Years
"appropriate cases" allow the prosecution to produce the Jail
certificate at a 'later point of time', while ensuring that the

rights of the accused are not compromised. This position 3 Unwritten

Constitutional
too, is later contradicted when the Court finally states that Principles
the certificate may be directed to be produced at any stage, Like
Democracy Is
before the completion of the trial. In practical terms, the Part Of
judgment's failure to conclusively indicate the relevant stage Constitution;
But Cannot
for the production of the certificate, could lead to grave Be Used As
uncertainty in the procedures followed by the Trial Court in Bases For
Invalidating
admitting electronic evidence. At what stage of the trial must Legislation:
the court draw a conclusion that the party is incapable of Canada
Supreme
producing the certificate and thus step in to exercise its Court
power to summon the certificate? As Abhinav Sekhri

contends, this process could lead to trials being severely 4 Children Born To
Parents Outside
delayed due the pendency of applications for the production Marital Bond Are
Blameless;
of the certificate.
Differential
Treatment
The future of electronic evidence Towards Them
Unconstitutional:
If Tomaso Bruno was declared bad law for failing to follow South Africa
Constitutional
the law laid down by a previous judgment of a co-equal Court
bench, Arjun Panditrao, (being a three judge bench) was
+ MORE
ENVIRONMENT
equally constrained from travelling beyond the law set out in

Anvar. However, the desirability (or lack thereof) of a

1 Total Ban On
Legal Mining
mandatory certificate under Section 65-B is still topical and
Will Give
does not end with Arjun Panditrao. The separate opinion of Rise To
Justice V. Ramasubramanian contains pertinent Illegal
Mining &
observations on the possibly out-dated nature of Section 65- Cause Huge
B, which in substantial part is a reproduction of the erstwhile Loss To
Public
Section 5, UK Civil Evidence Act, 1968, that stood repealed in Exchequer:
1995 (ten years before its introduction in India). Jurisdictions Supreme
Court
such as Canada presume the integrity of the computer Modifies
device and the information generated therein and allow NGT
Directives On
parties to adduce evidence to rebut such presumptions. On a Sand Mining
whole, the trend has been towards allowing parties to

introduce electronic evidence in trials more easily. There is a 2 Dolomite

Mining In
prevailing view amongst even the defence counsels that Uttarakhand:
stringent procedural requirements such as a mandatory NGT Orders
₹2 Cr Interim
certificate, may hinder accused persons from relying on Compensation
digital evidence that is potentially exculpatory. For
Environment
The requirement of a certificate under Section 65-B as a Damage,
Spreading
precondition to the admissibility of electronic records, is Muck Beyond
rooted in the supposition that the process of creating a Allotted Area

computer output (i.e. obtaining a print out, or creating a CD)

continues for a large part to be susceptible to malfunctioning

3 Pollution
Doodh
In

Ganga &
and tampering. The Supreme Court in Arjun Panditrao,
Mamath Kull
instead of settling the judicial discordance on electronic Of Jammu &
Kashmir;
evidence, has introduced more ambiguities in the law. One
NGT
way or the other, it appears that until the legislature revisits Constitutes
Five Member
the issue of the inherent trust-worthiness of electronic
Committee
records, judicial pronouncements will oscillate between To Ascertain
Water
concerns of the authenticity of electronic evidence on the
Quality
one hand (tampering, malfunctioning etc) and the ease of

admitting electronic evidence, on the other.

4 TN
Approaches
Views are personal only. Supreme
Court To
Restrain
 (Trisha Chandran is a Litigation Associate at Project 39A, Karnataka
From
National Law University, Delhi) Proceeding
With The
Proposed
Construction
TAGS EVIDENCE  ELECTRONIC EVIDENCE  ARJUN PANDITRAO CASE  Of Mekedatu
Reservoir
SUPRME COURT  #SECTION 65B EVIDENCE ACT 

#SECTION 65B (4) EVIDENCE ACT 

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