The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. has held that the certificate required under section 65B(4) of the Indian Evidence Act, 1872 is a condition precedent to the admissibility of evidence by way of electronic record.
The three judge bench comprising Justice Rohinton Fali Nariman, Ravindra Bhat and V Ramasubramanian held that where the requisite certificate under section 65B (4) of Evidence Act has been applied from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions of the Evidence Act, CPC or CrPC.
Section 65B of the Evidence Act deals with admissibility of electronic records. Sub section (4) states:
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,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) 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;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting 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 appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
First in the celebrated case of Anvar P.V. the bench has clarified that the required certificate under section 65B(4) is unnecessary if the original document itself is produced. The court said that the judgement in Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 need not be revisited. In this case, it was observed that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VD, chip etc., the same shall be submitted with the certificate in accordance with the terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining that electronic record, is inadmissible.
Secondly, the bench overruled the 2018 decision delivered by a division bench in the case of Shafhi Mohammad vs The State Of Himachal Pradesh. In this case, it was held that a party who is not in possession of the device from which the electronic document is produced, cannot be required to produce certificate under Section 65B (4) of the Evidence Act. The question before the Bench in this case was whether videography of the scene of crime or scene of recovery during investigation is necessary, to add weight to the evidence collected.
Therefore, it was held that the accused can challenge the genuineness of the certificate by seeking the opinion of the Examiner of Electronic Evidence under Section 45A of the Evidence Act.
Most importantly, the SC issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner. To obviate the destruction of record, as law generally obliges internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year. So, it was held that this direction shall be applied in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses or under Section 67C of the Information Technology Act.
Subsequently, the court directed that appropriate rules and directions should be framed in the exercise of Information Technology Act, by exercising powers such as in section 67C, 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.Likewise, appropriate rules for preservation, retrieval and production of electronic record,should be framed.
The judgment was passed in a petition filed by Shiv Sena strongman and then Minister of State Arjun Khotkar, who had moved the Apex Court in 2017 against a Bombay High Court order which had declared his election void.
Khotkar thus approached the Supreme Court in appeal, contending, among other things, that without the necessary certificate in writing under Section 65B(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested could not have been admitted in evidence.