I. INTRODUCTION:

On July 14, 2020, a three-judge bench of the Hon’ble Supreme Court of India (“Supreme Court”) delivered its decision in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors.[1], pursuant to a reference dated July 06, 2019, made by a two-judge bench of the Supreme Court seeking to settle the interpretation of Section 65B of the Evidence Act, 1872 (the “Evidence Act”). The reference was made following conflicting views taken by the Supreme Court in the case of Anvar P.V. v. P.K. Basheer & Ors.[2], and Shafhi Mohammad v. State of Himachal Pradesh[3].

Answering the reference, the Supreme Court has inter alia held that the decision in Anvar P.V.; with the clarification provided by the Supreme Court in Arjun Panditrao Khotkar, shall govern the law on Section 65B of the Evidence Act. Consequently, the Supreme Court has overruled the decision in Shafhi Mohammad, and has further issued general directions to be followed by Courts that deal with electronic evidence to ensure their preservation, and production of certificate at the appropriate stage. The Supreme Court has also made recommendations for framing of rules/directions in exercise of powers under Section 67C of the Information Technology Act, 2000 (‘IT Act’) and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption.

II. FACTUAL MATRIX AND PROCEDURAL POSTURE
:

1. Civil Appeals with special leave were preferred by Arjun Panditrao Khotkar (Respondent before the High Court, Bombay), against the judgment and order of the High Court of Judicature at Bombay, dated November 24, 2017 in Election Petition Nos. 6 and 9 of 2014, wherein the High Court had set aside the election of Arjun Panditrao Khotkar to Jalna Legislative Assembly Constituency, Maharashtra for a term commencing from November, 2014. An important piece of evidence relied by the Petitioners before the High Court in challenging this election, was certain video recording from a CCTV camera placed outside the office of the Returning Officer, which were produced pursuant to the direction of the High Court. Peculiarly, however, the officers that produced the video recording in a Compact Disc (‘CD’) did not furnish a certificate under Section 65B of the Evidence Act despite repeated requests from the Petitioners and direction of the High Court. Therefore, the Returning Officer was cross-examined by the Petitioner on the authenticity and integrity of the CDs. The High Court held inter alia that the officers did not produce the certificate under Section 65B (4) of Evidence Act despite its direction, and that the testimonial evidence of the Returning Officer has satisfied the requirement of Section 65B (4) of the Evidence Act. The High Court further held that oral evidence on the contents of an electronic record in lieu of written certificate under Section 65B (4) of Evidence Act, is not barred by the Evidence Act.
   
2. The Appellant, Arjun Panditrao Khotkar challenged the judgment and order passed the by the High Court before the Supreme Court, inter alia, on the ground that the electronic record viz. CDs could not have been admitted into evidence without the certificate under Section 65B (4) of Evidence Act. The Appellant relied on the decision of the Supreme Court in Anvar P.V. Initially, when the special leave petitions were listed before a two-judge bench for admission, the bench; citing Anvar P.V., opined that decision of the Supreme Court in Shafhi Mohammad may require reconsideration by a larger bench. Therefore, appeals were accordingly referred to a three-judge bench, which heard them and pronounced its unanimous decision on July 14, 2020.

III. LAW RELATING TO ADMISSIBILITY OF ELECTRONIC RECORDS:

1. Section 3[4] of the Evidence Act defines ‘Evidence’ to mean and include statements made by witness and all documents including electronic records. Section 2(1) (t)[5] of the IT Act, defines ‘electronic record’ to mean data, record, image, or sound stored, received or sent in an electronic form.
   
2. Sections 65A and 65B of the Evidence Act deal with the proof and admissibility of an electronic record into an evidence. Section 65A[6] states that contents of an electronic record may be proved in accordance with Section 65B. Section 65B stipulates that an information contained in an electronic record that is printed on a paper or recorded in an optical or magnetic medium produced by a computer (‘Computer Output’) shall be deemed to be a ‘document’, if it satisfies the conditions under Sections 65B (2) to 65B (4) of IT Act, and shall be admissible in any proceedings as evidence of the content of the original, without proof (as to the existence) or production of the original. Section 65B of the Evidence Act, thus, stipulates the admissibility of an electronic record dealing with “existence” and “content” of such record.

IV. MARCH OF LAW ON SECTION 65B EVIDENCE ACT TILL JULY 14, 2020:

1. State (N.C.T. of Delhi) v. Navjot Sandhu[7]: A two-judge bench of the Supreme Court, while deciding the admissibility of a print out of computerized call detail records furnished by cellular service providers, held that dehors the conditions mandated under Section 65B of the Evidence Act and that the electronic record could be admissible as secondary evidence under, and on satisfying Sections 63 and 65 of the Evidence Act[8].
   
2. Anvar P.V. v. P.K. Basheer & Ors.[9]: A three-judge bench of the Supreme Court, while observing that electronic record are prone to tampering, held that Section 65B Evidence Act deals with the admissibility of an electronic record and that any evidence by means of an electronic record which is printed on a paper or copied in a medium (Computer Output), can be proved only on satisfying the procedure mandated under Section 65B Evidence Act, and that the certificate under Section 65B (4) of Evidence Act is mandatory for admission of a Computer Output, as a secondary evidence. The Supreme Court, importantly, observed that the special provisions of Sections 65A and 65B of the Evidence Act are a complete Code in themselves when it comes to admissibility of evidence of information contained in electronic records. The Supreme Court further held that the certificate under Section 65B (4) of the Evidence Act must be provided when the record is produced into evidence. Overruling Navjot Sandhu, the Hon’ble Court specifically held that a Computer Output shall not admitted as secondary evidence unless the mandate under Section 65B of Evidence Act are satisfied. Lastly, the Hon’ble Court further went on to hold that if the original electronic record itself is sought to be produced into evidence, then the certificate under Section 65B of Evidence Act may not be required.
   
3. Vikram Sing & Ors. v. State of Punjab & Ors.[10]: A three-judge bench of the Supreme Court, while deciding whether or not a magnetic tape used to record a conversation ought to have been adduced into evidence along with a certificate under Section 65B (4) of Evidence Act, relying on Anvar P.V. held that for admitting a secondary evidence of electronic record the certificate under Section 65B (4) of Evidence Act is mandatory. The Supreme Court further held that tape recorded conversation, contained in the original cassette used to record the conversation, is a primary evidence and not a secondary evidence. Therefore, since the primary evidence itself is sought to be produced, it does not require a certificate under Section 65B (4) of Evidence Act for being admitting into evidence.
    
4. Sonu v. State of Haryana[11]: a two-judge bench of the Supreme Court, while observing that the Sections 65A and 65B of the Evidence Act as relating to the procedure, mode or method or proof, held that objection regarding marking of electronic record in to evidence without production of certificate under Section 65B (4) of the Evidence Act, ought to have been raised at the trial stage when the record was sought to be marked and cannot be raised in the appeal.
   
5. Shafhi Mohammad v. The State of Himachal Pradesh[12]: A two-judge bench of the Supreme Court held that Sections 65A and 65B of the Evidence Act are not a complete code onto itself. The Supreme Court further held that the requirement of a certificate under Section 65B (4) of Evidence Act is mandated only when the person producing the electronic record into evidence is in possession of the electronic device. In the event the electronic record is being adduced into evidence by a person who does not possess the electronic device, then the said electronic record may be admitted pursuant to Sections 63 and 65 of the Evidence Act. Lastly, the Supreme Court held that the requirement of certificate under Section 65B (4) of Evidence Act is only procedural and can be waived by Court in the interest of justice.
   
6. Tomaso Bruno and Anr. v. State of Uttar Pradesh[13]: A three-judge bench of the Hon’ble Court held that secondary evidence of the contents of the electronic record can also be proved under Section 65 of the Evidence Act.

V. ARGUMENTS OF THE PARTIES IN THE SPECIAL LEAVE PETITION:

1. The Appellant contended that the decision of the High Court was in contravention to the judgment of the Supreme Court in Anvar P.V. The Appellant further contended that the CDs cannot be admitted into evidence without certificate under Section 65B (4) having been furnished along with the CDs. Lastly, the Petitioner contended that the theory of “substantial compliance” with the requirement of Section 65B (4) Evidence Act through the oral evidence of the witness, as held by the High Court, is in contravention to the decision in Anvar P.V.
   
2. The Respondents contended that the officials who provided the CDs deliberately failed to issue a certificate under Section 65B (4) Evidence Act despite repeated requests from the Respondents and direction from the High Court, therefore, the oral evidence of the witness which was later reduced into writing and signed by the witness denotes sufficient compliance with the requirements of Section 65B (4) of Evidence Act. They also contended that in cases of difficulty or impossibility in production of a certificate under Section 65B (4) of Evidence Act, the same shall not result in denial of crucial evidence. Respondents further contended that Shafhi Mohammad is good law, and that Anvar P.V. is applicable only in case where the party is able to procure the certificate.
   
3. An Intervenor in the Appeal, contended, inter alia, that Section 65B of Evidence Act does not stipulate the stage at which the certificate under Section 65B (4) of Evidence Act must be produced, therefore, the same may be produced at any stage of the proceedings. The Intervenor further sought for a clarification of the decision in Anvar P.V. to the effect that the procedure stipulated under Sections 65A and 65B alone shall have to be followed for the admissibility of information contained in an electronic record.

VI. DECISION OF THE SUPREME COURT:

1. Nature and Scope of provisions Sections 65A and 65B of Evidence Act: Section 65A of the Evidence Act states that the contents of an electronic record may be proved in accordance with provisions of Section 65B of Evidence Act. On the “admissibility” of the electronic record, Section 65B of Evidence Act stipulates that “existence” and “content” of the electronic record as being proved once it has been admitted into evidence. Section 65B of Evidence Act creates a deeming fiction that the electronic record may be treated as a “document” under Section 3[14] of the Evidence Act. The conditions mentioned under Sections 65B (2) and 65B (4) of Evidence must be satisfied cumulatively. The certificate must be issued by person occupying responsible position in relation to the operation of the electronic device or by person who is in management of “relevant activities”. Contents of the certificate must be to the “best knowledge and belief of the person stating it”. The “and” between the “best knowledge” and “belief” shall be treated as “or”.
   
2. Section 65B of Evidence Act as a Special Provision: The deeming fiction that the electronic record is a “document” shall take effect, and the electronic record and its content admissible as evidence only if the requirements in Sections 65B (2) – 65B (4) are satisfied. The non-obstante at the beginning of the Section 65B (1) of Evidence Act makes it clear that the admissibility and proof of information in an electronic record must follow the procedure in Section 65B of Evidence Act. Section 65B of Evidence Act is a special provision in this behalf and therefore, the Section 62 to 65 of Evidence Act shall not apply for admissibility of electronic records.
   
3. Primary Evidence vs. Secondary Evidence under Section 65B of Evidence Act: Section 65B (1) of Evidence Act distinguishes between “original” electronic record contained in the computer and the Computer Output i.e. output of the electronic record from the computer in form of print out or storage in magnetic medium. The “original” electronic record is a primary evidence and the Computer Output is a secondary evidence. The mandate of Section 65B (4) of Evidence Act applies only for admissibility of Computer Output into evidence, while the “original” electronic record from computer may be admitted without such certificate. Therefore, the phrase “under Section 62 of the Evidence Act,…” has been removed from the phrase “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” in para no. 24 of the decision in Anvar P.V. With this clarification/removal, the decision in Anvar P.V., stands as good law on Section 65B of the Evidence Act and does not require to be set aside.
   
4. Overruling the view in Tomaso Bruno[15]: In Tomaso Bruno, the Supreme Court did not refer to the decision in Anvar P.V., but, had referred to the judgment in Navjot Sandhu – which was overruled by Anvar P.V. Therefore, the view of Tomaso Bruno that secondary evidence of an electronic record can be adduced under Section 65 of Evidence Act is overruled and is held to be per incuriam.
   
5. Overruling of Shafhi Mohammad[16]: The decision in Shafhi Mohammad is based on decision of the Hon’ble Court in Tomaso Bruno., and since the latter has been held per incuriam, the decision in Shafhi Mohammad is also bad in law. Further, Shafhi Mohammad is based on the premise that person seeking to produce an electronic record but not in possession of electronic device may not be able to produce certificate under Section 65B (4) of Evidence Act, is incorrect and baseless. Section 165 of Evidence Act, Order XVI Rules 6, 7 & 10 of Code of Civil Procedure, 1908, and Section 91 of Code of Criminal Procedure, 1973, enables such person to prefer an application before the court seeking for production of certificate under Section 65B (4) of Evidence Act from person in possession of such electronic device and refusing to give such certificate. In view of the foregoing, the judgment in Shafhi Mohammad is overruled.
   
6. Impossibility in getting a certificate under Section 65B (4) of Evidence Act: In the specific facts of this case, the Respondent had made several requests to the concerned officials seeking certificate under Section 65B (4) of the Evidence Act, and the High Court had also directed the concerned officials to issue such certificate. The parties have done everything within their power and reach to procure the certificate. However, the officials were not forthcoming with such certificate. The Hon’ble Court relying on the maxims lex non cogit ad impossibilia i.e. the law does not demand the impossible, and 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, absolved the parties of their mandatory obligation from producing such certificate.
   
7. Stage of production of certificate under Section 65B (4) Evidence Act: Section 65B of Evidence Act does not stipulate the stage at which the certificate under Section 65B (4) of Evidence Act must be produced. However, in Anvar P.V. the Hon’ble Court observed that such certificate must accompany the document when the same is being produced in evidence. In cases where the certificate produced is defective or the person who is in possession of the electronic device is not providing a certificate, then the trial judge, at the time when the electronic record is produced before him without the certificate, must issue summons the concerned person and direct that person to issue certificate. So long as the trial is not over the Court can direct production of certificate under Section 65B (4) of Evidence Act.
   • Summoning person to produce certificate in civil proceedings: The power to summon a person to produce a certificate in a civil proceeding is subject to the discretion of the judge in accordance with law and facts of the case.
   • Summoning person to produce certificate in criminal proceedings: Stage of admitting documentary evidence in criminal trial is at the time of filing of the chargesheet, and the accused is entitled to copies of all documents relied on by the prosecution. Permitting prosecution to produce evidence at a later stage should not prejudice the accused. Depending on facts and circumstances of the case and ensuring that the accused will not be prejudiced, the Court may permit prosecution to produce the certificate at a later stage i.e. even after filing chargesheet. If the accused proposes to produce certificate at a later stage, then the Court may exercise discretion depending on the justice of the case.
     
8. Obligation on Cellular Companies and Internet Service Providers: Per License for Provision of Unified Access Services’, 2007, the License Agreement for Unified License and the License Agreement for Provision of Internet Service, the cellular companies and internet service providers maintain the usage log for a period of one (1) year. Therefore, if the investigating agency or individual parties fail to procure the records or the certificate within the said period, the production of a certificate after commencement of trial would render the date unverifiable. Accused may not be able to challenge the veracity of the certificate under Section 45A of the Evidence Act, as the relevant electronic record may not be available with the provider. Therefore, the Supreme Court has directed that the cellular companies and internet service providers segregate the CDRs and other relevant records that was sought during investigation, and save them separately and securely. The said records may be directed to be produced during the trial by any party, through the trial court. This direction is issued specifically for criminal trial and shall be in force until appropriate directions are issued under relevant terms of the licenses or under Section 67C of the IT Act.
   
9. Draft Model Rules for adoption by High Courts: Pursuant to the resolution on April 23, 2016, in the Conference of Chief Justices of High Courts, to draft uniform guidelines for reception of electronic evidence, a committee of judges was constituted, and the committee formulated a Draft Rules for the Reception, Retrieval, Authentication and Preservation of Electronic Records. The Supreme Court has directed the concerned authorities to examine the Draft Rules for giving them statutory force.

VII. ANSWER TO REFERENCE:

The Hon’ble Court answered the reference, dismissing the Appeals, in the following terms:

1. Anvar P.V. as clarified by the Supreme Court viz. removal of the phrase “under Section 62 of the Evidence Act,…” in para no. 24 of the said decision, shall be the law on Section 65B of Evidence Act. Tomaso Bruno is per incuriam, and Shafhi Mohammad is overruled.
2. If original document itself is produced i.e. the owner of laptop or computer stepping on to the witness box and also producing the said device, then no certificate under Section 65B of Evidence Act is required. However, if the “computer” is part of “computer system” or “computer network”, then it is physically impossible or produce the same before the Court, then the information contained in such “computer” must be adduced into evidence in accordance with Section 65B (1) together with certificate under Section 65B (4) of Evidence Act.
3. Cellular companies and internet service providers shall segregate and securely maintain (in tune with Section 39 of Evidence Act) the CDRs and other relevant information that were seized by the investigating agency. Any part to the concerned case can use such data during the trial. This direction shall be followed in all proceedings till appropriate direction are issued under relevant licenses or rules are framed under Section 67C of IT Act, and data retention conditions are formulated for compliance by telecom companies and internet service providers. Courts shall follow these directions to ensure preservation of electronic evidence, and production of certificate at appropriate stage.
4. Appropriate rules and directions should be framed under Section 67C of IT Act, and also rules to be framed for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Rules for preservation, retrieval and production of electronic record, should be framed after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.

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[1] Civil Appeal Nos. 20825-20826 of 2017 with Civil Appeal No. 2407 of 2018 and Civil Appeal No. 3696 of 2018, judgment delivered on July 14, 2020, available at https://main.sci.gov.in/supremecourt/2017/39058/39058_2017_34_1501_22897_Judgement_14-Jul-2020.pdf.

[2] (2014) 10 SCC 473.

[3] (2018) 2 SCC 801.

[4] Section 3 – “Evidence.”– “Evidence” means and includes—(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.”

[5] Section 2(1)(t) -“electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

[6] 65A. Special provisions as to evidence relating to electronic record.–The contents of electronic records may be proved in accordance with the provisions of section 65B.

[7] (2005) 11 SCC 600.

[8] “Irrespective of the compliance of the requirements of Section 65B 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 & 65. It may be that the certificate containing the details in sub-Section (4) of Section 65B 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 & 65.” – at para 150.

[9]Supra note 2.

[10] (2017) 8 SCC 518

[11] (2017) 8 SCC 570.

[12] (2018) 2 SCC 801.

[13] (2015) 7 SCC 178.

[14] Supra note 4.

[15] Supra not 12.

[16] Supra note 11.