Digital proof and request for a certificates below the Indian Proof Act, 1872

Electronic evidence and request for a certificate under the Indian Evidence Act, 1872, written by Prachi Mehta, a student at MKES College of Law

INTRODUCTION

Legal evidence can be described as material facts that are presented to the court to support all objections and arguments made during proceedings. Thus, the evidence is something that helps prove their alleged fact to the parties. In a court of law, a judge’s decision on a particular matter always depends on the legitimate evidence presented to establish the truth.
Under the Indian Evidence Act of 1872, Sections 61 through 65 deal with the procedure for evidencing the contents of the documents. This content of a document can be proven by primary evidence or secondary evidence. Section 62 of the Act explains that if the original document itself is presented in court that it is referred to as primary evidence, and section 63 explains that if the original document by itself is not presented in court, the party may present secondary evidence, by meeting the conditions set out in Section 65 of the Act.

ELECTRONIC EVIDENCE UNDER INDIAN EVIDENCE LAW

With the increasing contribution of electronic devices to our lives, digital evidence can prove to be an integral part of verifying the truth in the given fact. After the Information Technology Act was established in 2000, Sections 65A and 65B were incorporated into the Indian Evidence Act, which established specific provisions for demonstrating electronic records. Under the IT Act 2000, “electronic record” means data, recordings, images or sounds that are stored, received or sent in electronic form. Section 65B of the Indian Evidence Act discusses the eligibility process for electronic records, and Section 65B subsection 4 discusses the condition for obtaining a certificate prior to submission of such electronic records. These terms had created a disagreement between the Apex Court judgments.
Section 65B states: “Notwithstanding all provisions of this Act, all information contained in an electronic record must be printed, stored, recorded, or copied onto paper, optical or magnetic media produced by a computer (hereinafter referred to as Computer edition) is also considered to be a document if the conditions specified in this section with regard to the information and computer concerned are met and are admissible as evidence or content of the document in any procedure without further evidence or presentation of the original or a fact stated therein whose direct evidence would be admissible. “Furthermore, subsection (4) of the same requires a certificate if evidence is to be taken on the basis of this section. The requirement for a certificate under Section 65B thus posed a legal puzzle that was finally resolved by the Supreme Court in a landmark ruling by 3 Judge Bench, consisting of Judges RF Nariman, S. Ravindra Bhat and V. Ramasubramanian in Arjun Panditrao Khotkar v Kailash became Kushanrao Gorantyal, 2020 SCC Online SC 571.

SECTION 65B CERTIFICATE IS A REQUIREMENT

In the above mentioned case, the applicant appealed against the judgment of the High Court to the Apex Court. The High Court accepted an important piece of evidence that depends on the petitioners to challenge the election. This was a video recording on a compact disc (CD). However, this electronic evidence was created without submitting a certificate in accordance with Section 65B (4) of the Evidence Act. The officers who produced the CD failed to obtain the certificate even after their persistent efforts. The High Court also ruled that the evidence during the officer’s cross-examination met the requirement of Section 65B (4) of the Act to be oral evidence. Therefore, in a special leave request before the Supreme Court, the complainant challenged the High Court’s decision on the grounds that the electronic record (CD) presented as important evidence had been admitted without the certificate pursuant to Section 65B (4) of the evidence Oral evidence permitted instead of the written certificate violates the Evidence Act. The applicant cited the case of the Supreme Court of Anvar PV v PK Basheer & Ors, 2014 10 SCC 473, which contradicts the judgment of the present case.
In his allegation in the above case, the interviewee alleged that the officials who made the CDs could not submit the certificate despite their reasonable efforts. The verbal taking of evidence by the witness, which was recorded in writing and later signed by the witness, satisfies the necessity of Section 65B (4) of the Evidence Act. The Respondent cited the Shafhi Mohammad v. Himachal Pradesh State, 2018 2 SCC 801, according to which the impossibility or difficulty of producing a certificate should not prejudice the interests of justice. It was also argued that the Anvar PV v PK Basheer case would only apply if the party was able to obtain the certificate.
The interveners in the complaint also asserted that Section 65B of the Evidence Act did not specify the stage at which the certificate under Section 65B (4) of the Act had to be presented, which is why it could be presented at any stage of the proceedings.

The main problems raised here were

  1. Whether the requirement for a certificate according to § 65B Paragraph 4 is a prerequisite before secondary evidence is submitted as a document / primary evidence?
  2. At what stage of the procedure can the certificate be presented in court?

The Supreme Court has observed conflicting views on the judgments in Anvar’s case and Shafti Mohammed’s case, and has finally cleared the air in the present case. The Court replied to the questions raised and ruled that section 65B (4) of the requirement to produce a certificate before providing secondary evidence, as confirmed in Anvar’s case. In the absence of a certificate, electronic evidence in court is not permitted. While the Apex Court was re-examining Shafti Mohammad’s case, it overturned its verdict and referred to the following Latin maxim Generalia specialibus with no deviating meaning. A particular law will always take precedence over general law.
The Supreme Court also ruled that the certificate should be presented at the time of filing the document. However, if it could not be made at that time, it can be made later, provided that such late submission of the certificate does not affect the rights of the accused.

IMPORTANCE OF THE CERTIFICATE UNDER SECTION 65B OF THE ACT OF EVIDENCE

According to the judgment in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, the Apex Court clarified certain points:
• The Court has resolved the legal conundrum surrounding the requirement for an electronic evidence certificate under the Indian Evidence Act of 1872, stating that it is a requirement for electronic evidence authorization.
• The Court overturned the Shafti Mohammad judgment that the production of a certificate may be waived when it is impossible or difficult to produce, and upheld the judgment in the Anvar case.
• Electronic records can be called original or primary evidence if they are stored in the device itself and the copies of that evidence made from them are called secondary evidence. Therefore, in the first case, it is not necessary to submit the certificate in accordance with Section 65B Paragraph 4, as the original record is created by the user. This can be done if the party can prove by manufacturing a laptop, tablet or mobile phone that the device in question on which the information is stored is owned and operated by the party itself. However, this cannot be done if the device in question cannot be physically brought to court, such as a computer. Therefore, in order to prove the contents of this device, a certificate proving its authenticity according to Section 65B (1) is required, which is used to read Section 65B (4). The same is made clear in the Anvar judgment, which states that “… where an electronic record is used as such as the main evidence under Section 62 of the Evidence Act …” may more appropriately without the words “under Section 62 of the Evidence Act”.
• In the case where it is difficult to obtain a document, the Court may through various legal provisions such as Section 165 of the Act, which empower a judge to order the production of documents or records in order to obtain evidence of the relevance of facts or under Ordinance XVI of the Code of Civil Procedure of 1908, dealing with the “Summoning and Presence of Witnesses”, or under Sections 91 and 349 of the Code of Criminal Procedure of 1973.
• If the relevant authority has already applied for the certificate but the authority does not comply, the party may request the court to order that authority to produce the certificate. However, if the party has examined all the means of the law to produce the evidence but still cannot obtain the certificate, the court may excuse the request.
• The Court has also clarified that Section 65B (1) clarifies that the admissibility of electronic records must be demonstrated in compliance with the conditions set out in Section 65B, as this is a special provision and Sections 62 to 65 which are deal with non-electronic records considered irrelevant Special law always takes precedence over general law.

CONCLUSION

Electronic records are a reliable source of evidence in this digital age, but at the same time more susceptible to tampering, changes, replacement or removal. As such, the courts are determined to file a Section 65B certificate to avoid a failure of justice and to maintain legitimacy. Therefore, the submitted certificate must be attached to the electronic record when presented as evidence, as confirmed in the Arjun Panditrao Khotkar case. When effectively implemented, these guidelines improve the investigation and evidence process.

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