Section 65A and 65B Itself a Code Under Indian Evidence Act, 1872

The 21^st century has almost revolve around technologies and scientific invention, the current stage where all over the world the scientist are in process of inventing vaccine for COVID-19 which the most suitable example for it. The use of electronics in today’s time is the most common thing in day to day life. Information Technology has eased out almost every humanized action. In this age of cyber world as the application of computers became more popular, there was expansion in the growth of technology. The evolution of Information Technology gave birth to the cyber space whereby internet provides equal opportunities to all the people to access any information, data storage, analyse etc. with the use of high technology. The Information Technology Act, 2000 and its amendment are based on the United Nations Commission on International Trade Law model Law on Electronic Commerce. The IT Act 2000 was amended to allow for the admissibility of e-evidence. An amendment to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker’s Book Evidence Act, 1891 provides the legislative framework for transactions in electronic world.[i]With the change in time and law, Indian courts have developed case law regarding reliance on electronic evidence. Judges have also demonstrated perceptiveness towards the intrinsic ‘electronic’ nature of evidence, which incorporates insight regarding the admissibility of such evidence, and therefore the interpretation of the law in relation to the way during which e-evidence are often brought and filed before the court. 

TYPES OF ELECTRONIC-RECORD

 Data, data generated, image/sound stored, received/ sent in electronic form or micro film/ computer generated micro fiche, digital signature, e-signature certificate.[ii]In the case of P. Gopalkrishnan v. State of Kerala[iii], the SC held that the video footage/clipping contained in such memory card/pen-drive/CDs/DVDs being an electronic record as envisaged by Section 2(1)(t) of the IT Act, 2000 is a “document” and whereby can’t be regarded as a material object.

Bankers’ books” include ledgers, day-books, cash-books, account-books and all other records used in the ordinary business of the bank, whether these records are kept in written form or stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism, either onsite or at any offsite location including a back-up or disaster recovery site of both u/Ss 2(3) and 2(8).[iv]

SPECIAL CHARACTERISTICES OF E-EVIDENCE

•  Not limited to the place of the offence.
• Can be easily tampered, altered or even destroyed.
•   Time is of essence in collection and preservation of e-evidence.
•  Requires special tools and knowledge.
•   Expert opinion becomes more relevant.

PROVISIONS RELATED TO ELECTRONIC RECORD U/D IEA, 1872[v]

v Section 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.

v Section 65B – Admissibility of electronic records

1.     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

     The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;

     The following computers shall constitute as single computer-

     Regarding the person who can issue the certificate and contents of certificate, it provides the certificate doing any of the following things:

  §  identifying the electronic record containing the statement and describing the manner in which it was produced;

  §  giving the particulars of device

  §  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.

By the insertion words “Notwithstanding anything contained in this Act” to Section 65A & 65B, which is a non-obstante clause, a non-obstante clause is usually appended to a neighbourhood with a view to offer the enacting a part of the section, just in case of conflict, an overriding effect over the supply in the same or other act mentioned within the non-obstante clause. It is like saying that despite the provisions or act mentioned within the non-obstante clause, the supply following it’ll have its full operation or the provisions embraced in the non-obstante clause won’t be an impediment for the operation of the enactment or the supply during which the non-obstante clause occurs.

JUDICIAL TIME-LINE

     APPRECIATION OF ELECTRONIC EVIDENCE

In 2005, State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru[vi], Supreme court held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65 of the Evidence Act, of an electronic record.

     STANDARD OF PROOF

In 2010, Supreme Court in case of Tukaram S. Dighole v. Manikrao Shivaji Kokate[vii], held that “Standard of proof” in the form of electronic evidence should be “more accurate and stringent” compared to other documentary evidence.

     In 2014, Anvar P.V. v. P.K. Basheer and Others[viii], Supreme Court overruled Navjot Sandhu’s case (supra), based on jurisprudential theory where a special provision under section 65A and 65B will prevail over the general law on secondary evidence under sections 63 and 65 of the Indian Evidence Act, 1872. So, for an electronic record to be admissible as secondary evidence in the absence of the primary, the mandatory requirement of section 65B certification is required to be complied with.

     WHEN IS THE CERTIFICATE NOT REQUIRED?

In 2018, Shafhi Mohammad v. State of H.P.[ix],A two-judge Bench took a view contrary to Anvar’s case (supra) ,requirement of the certificate under Section 65B of the Evidence Act as per the judgment of Anvar (supra) is not required in the following two cases :

i.                 A party who is not in possession of device from which the document is produced cannot be required to produce certificate under Section 65-B(4) of the Evidence Act.

ii.               The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies.

     STAGE OF FILING THE CERTIFICATE

In 2019, State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath[x], Supreme Court held that the failure to produce a certificate under Section 65B(4) of the Evidence Act at the stage when the charge-sheet is filed is not fatal to the prosecution. The necessity for production of such a certificate would arise when the e-record is sought to be produced in evidence at the trial. It is a level that the necessity of the production of the certificate would arise.

   ADMISSIBILITY OF E-EVIDENCE AND PRODUCTION OF CERTIFICATE FOR AUTHENTICATION

In 2020, Arjun Panditrao Khotkar V. Kailash Kushanrao Gorantyal and Others, Civil Appeal No(s). 20825 and 20826 of 2017[xi], a 3 judge bench of Supreme court comprising of R. F. Nariman, S. R. Bhat, V. Rmamsubramanian had made below observation regarding admissibility of e-evidence and production of certificate for authentication:

v It is compulsory for a party to produce the certificate required u/s 65B(4), where SC made it clear that certificate is the condition precedent for the admissibility of e-records.

Without considering the judgment passed in State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath, where the necessity for production of such a certificate would arise when the e-record is seek to be produced in evidence at the trial. It is at that level that the necessity of the production of the certificate would arise[xii].

CONCLUSION

The Arjun Panditarao case (supra) was the case to clear the ambiguity between the Anwar case(supra) and Shafhi  case (supra) but instead it has widened the crack between the two views i.e. first the certificate is a mere procedural requirement and other is at the root of admissibility of e-records. It also upheld the judgement passed in Arjun case whereby overruled other all the judgments.

By- Kaushal P. Modi

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