Background

The Hon’ble Supreme Court (Apex Court), 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 (Act), vide its interim decision dated 30 January 2018 in Shafi Mohammad vs. The State of Himachal Pradesh 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, if it is justified in the interest of justice. In effect, the matter stood adjourned to 13 February 2018 for the finalisation of the road-map for use of videography in the crime scene and the Standard Operating Procedure (SOP).

The key issue that was considered was whether a video recording of the scene of crime during investigation should be necessary to inspire confidence in the evidence collected and in the given context, what would be the scope of applicability of the procedural requirements under Section 65(B)(4) of the Act for furnishing a certificate in case of electronic evidence produced by a person not in custody of the device generating such evidence?

Key submissions advanced on scope of applicability of Section 65(B)(4) of the Act

In apprehension of the applicability of the conditions laid under Section 65B (4) of the Act to produce a certificate in relation to operation of relevant device generating such evidence or management of relevant activities, the following submissions were made:

  1. If electronic evidence was relevant and produced by a person, who was not in custody of the device from which the electronic document was generated, then the requirement of a certificate under Section 65B (4) of the Act could not be mandatory.
  2. Section 65B of the Act is a procedural provision to prove relevant admissible evidence.
  3. Section 65B is intended to supplement the law on the point by declaring that any information in an electronic record, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original.
  4. Section 65B cannot be read in derogation of the existing laws on admissibility of electronic evidence.

In order to analyse the various aspects of law of evidence, primary evidence and secondary evidence, the Apex Court referred to following judgments:

In Ram Singh And Others vs. Col. Ram Singh, 1985 (Supp) SCC 611 and English-law judgments such as R. vs. Maqsud Ali, (1965)2 All ER 464 and R vs. Robson (1972) 2 ALL ER 699; as well from American Law, (American Jurisprudence 2d (Vol 29) Page 494) it was observed that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. It was further observed that such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

In Tukaram S. Dighole vs. Manikrao Shivaji Kokate, (2010) 4 SCC 329 the Apex Court observed that new techniques and devices are order of the day and though such devices are susceptible to tampering, no exhaustive rule could be laid down by which the admission of such evidence may be judged.

In Tomaso Bruno and Another vs. State of Uttar Pradesh, (2015) 7 SCC 178 the Apex Court observed that advancement of information technology and scientific temper must pervade the method of investigation and scientific and electronic evidence can be a great help to an investigating agency.

In Anvar P.V vs. P.L Basheer & Others (2014) 10 SCC 473 the Apex Court observed that electronic evidence by way of primary evidence was covered by Section 62 of the Act to which procedure of Section 65B of the Act was not admissible. However, for the secondary evidence, procedure of Section 65B of the Act was required to be followed and a contrary view taken in State (NCT of Delhi) vs Navjot Sandhu that secondary evidence of electronic record could be covered under Section 63 and 65 of the Act, was not correct.

Judgment of the Apex Court

After hearing submissions of the parties and clarifying the legal position on the subject on the admissibility of the electronic evidence (especially by a party who is not in possession of device from which the document is produced) the Apex Court (in reference to aforesaid judicial decisions) made the following observations:

  1. Electronic evidence is admissible under the Act. Section 65A and 65B are clarificatory and procedural in nature and cannot be held to be a complete code on the subject.
  2. If the electronic evidence so produced is authentic and relevant, then it can certainly be admitted subject to the court being satisfied of its authenticity. The procedure for its admissibility may depend on the facts such as whether the person producing the said evidence is in a position to furnish a certificate under Section 65B (h).
  3. The applicability of the procedural requirement under Section 65B(4) of the Act of furnishing a certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such a certificate being in control of the said device and not of the opposite party.
  4. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Act cannot be held to be excluded. In such cases, procedure under the said provisions cannot be held to be excluded.
  5. A person who is in possession of authentic evidence but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure, will lead to denial of justice.
  6. A party who is not in possession of a device from which the document is produced cannot be required to produce a certificate under Section 65B (4) of the Act. Thus, the requirement of certificate under Section 65B is not always mandatory.

Comment

The judgment of the Apex Court, after adverting to several judicial precedents, seems to have restricted the applicability of the statutory certificate required under 65B(4) of the Act or may have carved out an exception to applicability thereof. This judgment may provide sanctity to considerably significant evidence that was earlier not taken into account in view of being procedurally uncertified in accordance with Section 65B(4) of the Act. It will be interesting to observe how the other court(s) interpret the view taken by the Apex Court.

In keeping with the varying views surrounding the issue pertaining to applicability of Section 65B (4) of the Act and the legal position qua the admissibility of electronic evidence enunciated in the judgment of Anvar P.V vs. P.K Basheer 2014(10) SCC 473, that has not been expressly over-ruled till date, the ruling of the Apex Court is expected to have implications on several ongoing proceedings and trials.