DEVELOPING JURISPRUDENCE ON ELECTRONIC EVIDENCE AFTER ARJUN PANDIT RAO JUDGEMENT

Introduction

Developing jurisprudence through the landmark judicial pronouncements

Over the years, judicial pronouncements have primarily disagreed on whether this certificate of authentication of electronic evidence is necessary or not. There are two views regarding the requirement of certificate. One view is that stricter procedures (such as a mandatory certificate) would prevent against tampered evidence being introduced. A contrary perspective views that the requirement of a mandatory certificate creates unnecessary procedural roadblocks, leading to delays in the judicial process, and potentially excluding important pieces of evidences.

A three judge bench of Supreme Court in 2014 overruled the Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600], and in the case of Anvar P.V vs. P.K basheer (2014) 10 SCC by three-judge bench of supreme court it was held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. Thus, in this case Supreme Court made the furnishing of certificate mandatory for the admissibility of electronic evidences. Since then, this Judgment became landmark on the issue as it authoritatively held that furnishing of Certificate under Section 65 B(4) is mandatory.

In 2015, in the case of Tomaso Bruno vs. state of U.P (2015) 7 SCC 178 the Apex Court observed that advancement of information technology and scientific temper must pervade the method of investigation and electronic evidence can be a great help to an investigating agency. Without giving no reference to Anvar case held that the content of an electronic record may also be proved by treating as a secondary evidence and the certificate will not be necessary.

In 2018, a two-judge bench of the Hon’ble Supreme Court in the case of Shafi Mohammad vs. State of Himachal Pradesh (2018) 2 SCC 801, , while deliberating upon the significance of videography as a crucial means of evidence in conjunction with the scope of applicability of procedural requirements under Section 65B(4) of the Indian Evidence Act, 1872 observed that a party, who is not in possession of a device which has produced an electronic document, cannot be required to produce a certificate under Section 65B(4) of the Act. It was further held that the requirement of producing a certificate can be relaxed by the court as long as authentic and relevant or if it is justified in the interest of justice.

Supreme court decision in the Arjun Pandit Rao case

Three judge benches of Supreme court comprising Rohinton Fali Nariman, S. Ravindra Bhat, V. Ramasubramanian in Arjun pandit rao khotkar vs. kailash kushanrao gorantyal and others (2020) 3 SCC 216 has made the following observations regarding the admissibility of electronic evidence and production of certificate for the authentication-

● It is mandatory for the party relying upon Electronic Evidence to produce the certificate required by Section 65B(4). Supreme court made it clear that certificate is the condition precedent for the admissibility of electronic records.

● The requirement under section 65B(4) will not be necessary if the original document is produced but where it is impossible to physically bring the system or network to the court then the electronic records can be produced only by the provisions under section 65B with the certificate.

● Where the Certificate is sought from the person or authority concerned and the person or the concerned authority refuses to give certificate and does not give any reply then the party can apply to the court. The Court may order the production of the Certificate by concerned Authority which will be bound to issue the same upon passing of such order.

● Section 65b is non obstante clause which is a special provision regarding the admissibility of electronic evidences then section 62 and 65 are relevant for this purpose.

● The Certificate should have been produced at the time of filing of document. However, if it could not be produced at that stage, it may be permitted to be produced later. But such later production of certificate should not prejudice the rights of the accused.

● The law laid down in Anvar P.V. case need not be revisited. However, the last sentence in paragraph 24 of the said judgment which reads as “if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act” is to be read without the words “under Section 62 of the Evidence Act”.

Whether the controversy is set at rest?

In Arjun Pandit Rao case Supreme court has failed to consider all preceding judicial decisions while laying down the law. As a result, it has widened the gap between two views – one that the certificate is a mere procedural requirement and the other that it is at the root of admissibility of electronic records. Further the judgment contains several internal contradictions on issues such the stage at which such a certificate ought to be produced. Overall, this longstanding judicial ambiguity around the admissibility of electronic evidence, may be a sign for the legislature to intervene and bring clarity to the law.

Conclusion

Now we can conclude that the Supreme Court in the recent judgement of arjun panditrao adopted the view of stricter procedure and made the certificate mandatory for the admissibility of electronic evidence in order to prevent the tempered evidence which may be produced in the court. Finally, it may be observed Anvar P.V. v. P. K. Basheer is restored and Shafhi Mohammad is expressly overruled and all the judgments which followed Shafhi Mohammad and disregarded Anvar P.V. were held per in curium.

References
https://www.vidhiwise.in/admissibility-of-electronic-evidence-a-critical-analysis-of-arjun-panditrao-khotkar-v-kailash-kushanrao-gorantyal-and-others/
https://economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-records-without-certificate-supreme-court/articleshow/62777759.cms#:~:text=Section%2065(B)%20of%20Indian,evidence%20in%20any%20court%20proceedings.&text=Such%20party%20cannot%20be%20required,Act%2C%22%20the%20bench%20said.
http://ceac.in/wp/2018/04/18/shafhi-mohammad-final-judgement-on-section-65b-issue/
https://www.lexology.com/library/detail.aspx?g=d258e6dd-7a24-4d91-a28a-b3681e0c0148
https://indiankanoon.org/doc/172105947/
https://medcraveonline.com/FRCIJ/admissibility-of-electronic-evidence-an-indian-perspective.html