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Pawan Reley and Sajal Awasthi
Documentary evidence under Chapter V of the Evidence Act, 1872 is of great importance during the course of trial as the same is the primary piece of evidence. Sections 62 and 63 of the Indian Evidence Act, 1872 deals with the admissibility of primary and secondary evidence respectively, during the proceedings before a court.
There exists a perpetual dilemma as to the mode and manner of admissibility of electronic evidence or records during the course of trial. The Supreme Court has often, through means of various judicial pronouncements, tried to resolve this procedural dichotomy. However, recent developments have shown the contrary intention of the Apex Court.
The recent judicial pronouncement of the Supreme Court in the case of Shafhi Mohammad v. State of Himachal Pradesh has led to an increase in procedural uncertainty for the subordinate courts as to what is the appropriate procedure for the admission and appreciation of electronic evidence under Section 65B read with Section 62 and 63 of the Indian Evidence Act, 1872.
In the year 2005, the Full Bench of the Supreme Court dealt with the above-mentioned dilemma in the case of State (NCT of Delhi) v. Navjot Sandhu & Ors. The Court, in that case, observed that Section 63 of the Act means and includes, among other things, “copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”.
Therefore, it concluded that irrespective of compliance with the requirements of Section 65B, there is no bar to the admissibility of electronic evidence as secondary evidence under other provisions of the Evidence Act.
The adoption of such an interpretation by the Supreme Court opened the flood gates for the violation of the language and the intent behind Section 65B. In holding that the requirement of production of an electronic evidence certificate under Section 65B is not mandatory in nature, the Supreme Court did injustice to the plain language of the aforesaid provision.
The use of the word “shall” and the presence of the non-obstante clause in sub-section (1) of Section 65B makes the requirements of the same mandatory and obligatory in nature. Furthermore, the legislative intent behind Section 65B comprehends the requirement of an electronic certificate to be essential in nature. The same cannot be dispensed with at the convenience of the court.
The above-stated position remained the law of the land till 2014, when a full bench of the Supreme Court revisited the position pertaining to the need of electronic evidence certificate under Section 65B of the Act, in the case of Anvar PV v. PK Basheer. In that case, the Court adopted the stricto sensu approach and rectified the error committed in the Navjot Sandhu case by expressly overruling the same to extent of the statement of law on admissibility of secondary evidence pertaining to electronic evidence. It held that the requirement of giving an electronic certificate under Section 65B pertaining to any electronic evidence or electronic record is mandatory for treating such an evidence as admissible in law.
Thus, after the Anvar PV case, the position of law came to be well settled that any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.
The position in the Anvar PV case was further relied upon by a Division Bench of the Supreme Court in the case of Sonu v. State of Haryana. However, the Supreme Court distinguished the facts of the Anwar PV Case from the facts of Sonu Case in relation to the stages of showing the electronic certificate. It was stated:
“26. That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B (4) of the Indian Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage…”
Ergo, the Supreme Court in the Sonu Case majorly relied on RVE Venkatachala Gounder v. Arulmigu Visweswaraswami and provided clarification regarding stages of raising the objections of not producing the certificate of electronic evidence. The same is provided as under:
“27. It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document…
…if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies…”
It is to be noted that the dilemma was revived in the case of Shafhi Mohammad v. State of Himachal Pradesh, wherein a Division Bench of the Supreme Court differed from the Anvar PV case and held that the requirement of certificate under Section 65B is not always mandatory and can be dispensed with, in the interest of justice. The Supreme Court held as under:
“11. The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. 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 Evidence Act cannot be held to be excluded.
In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness 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. Thus, requirement of certificate under Section 65B(h) is not always mandatory…”
The judicial pronouncement in the Shafhi Mohammad case lost the sight of the well-settled doctrine of stare decisis as laid down by the Supreme Court in various judgments. The larger issue for consideration which arises in the Shahfi Mohammad case is whether a ruling of a Division Bench of the Supreme Court is against or in contravention to the judgment rendered by a larger bench of that very Court. The Supreme Court erred in law by placing its reliance upon the case of Tomaso Bruno v. State of UP, which in turn at para 25, had affirmed the approach adopted by the Navjot Sandhu case.
The Court, while arriving at the conclusion in the Shafhi Mohammad case, lost the sight of the fact that the law laid down in the Navjot Sandhu case was no longer good law and had been expressly overruled in the full bench judgment of the Anvar PV case. Ergo, the law pertaining to electronic evidence, as settled in the Tomaso Bruno case, is equally bad in law and shouldn’t have been relied on by the Supreme Court in the first place.
The judgment in the Shafhi Mohammad case is clearly per incuriam. The Supreme Court, in the case of Roger Shashoua v. Mukesh Sharma, elucidated the well-settled principle of per incuriam and observed to the effect that:
“A decision or judgement can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger bench”.
The discipline demanded under Article 141 of the Constitution is of great importance as, without it, the certainty of law and consistency of rulings would be affected. It can be stated that the Supreme Court ought to have reposed the statement of law as laid down in the Anvar PV case. This would have prevented the reviving of the old dichotomy which was attempted to be put to rest in the year 2014.
Therefore, the judicial pronouncement in the Shafhi Mohammad v. State of Himachal Pradesh calls for serious reconsideration by a larger bench of the Supreme Court of India.
On July 26, 2019, the Supreme Court, in the case of Arun Pandit Rao Khotkar v Kailash Khusan Rao, while understanding the gravity of the issue of electronic evidence, referred the Shafhi Mohammad case for reconsideration in the light of Anvar PV.
However, it is to be noted that it is not only the law laid down in the Shafhi Mohammad Case which requires reconsideration, but also a few queries raised in the Sonu Case regarding the prospective and retrospective applicability of the Anwar PV Case itself.
Pawan Reley is an advocate practicing at the Supreme Court of India. Sajal Awasthi is an advocate practicing at the Delhi High Court.