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The Supreme Court recently, vide judgment and order dated July 14, gave finality to a legal conundrum pertaining to the requirement of certificate before producing electronic evidence under Section 65B of the Indian Evidence Act.
Section 65B of the Act engrafts the procedure regarding admissibility of electronic records. Sub-section 4 of Section 65B provides for the condition of obtaining a certificate before adducing electronic evidence, which has led to conflicting views among the judgments of the Supreme Court.
Last year, a two-judge Bench comprising Justices Ashok Bhushan and Navin Sinha had referred the question in view of the conflict between Anvar PV v. PK Basheer & Ors. and Shafhi Mohammad v. State of Himachal Pradesh. On this reference, a three-judge Bench delivered its judgment, and held that requirement of a certificate is a pre-condition to the admissibility of evidence by way of electronic record under Section 65B of the Act.
While doing so, the Court upheld the law laid down in Anvar’s case (supra) wherein it was held that "Sections 65A and 65B being a complete code as to admissibility of electronic records, the “baggage” of Primary and Secondary Evidence contained in Sections 62 and 65 of the Evidence Act should not at all be adverted to."
After the enactment of the Information Technology Act, 2000, Sections 65A and 65B were added under Chapter V of the Act, which deals with documentary evidence. It took 20 years for the Supreme Court to give finality to the conundrum created by varying decisions of different benches on the aspect of requirement of a certificate as a pre-condition for the admissibility of electronic record.
Section 61 of the Act states that the content of documents may be proved either by primary or secondary evidence, and electronic record is nothing but a document which may be proved in accordance with Section 65B.
Before discussing how this provision earlier created confusion in the minds of judges across the country, it is pertinent to discuss the approach adopted by the courts regarding admissibility of electronic record before the insertion of Section 65A and 65B in the Act.
Position before the year 2000
Before the year 2000, courts used to adopt Sections 61 to 65 of the Act while deciding the admissibility of electronic records. Indubitably, electronic record is a document and the content of such document could be proved either by primary evidence or by secondary evidence. When the original document itself is produced before the Court for its inspection, it is called as primary evidence as per Section 62 of the Act. The contents of an original document must be proved by producing the document itself. If the original document is not available, there arises a need for producing secondary evidence.
Section 63 of the Act provides for what all qualify as secondary evidence. For the purpose of electronic records, Section 63 (2) was used, which states that
“Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.”
In case the original document/primary evidence is not available with the party who wants to adduce it as evidence or if it is not possible to get the original document, secondary evidence is used for proving its content as per the conditions laid down under Section 65 of the Act. In other words, in case of an electronic record, if a party can produce the original record itself, then there is no need to take recourse as mentioned under Section 65 of the Act. However, if it becomes impossible for a party to produce the original document/record itself, then it is absolutely necessary to comply with Section 65 of the Act for producing secondary evidence in order to prove the contents of such original record.
Position after the year 2000
Section 65A provides that the contents of an electronic record - which was earlier used to be proved in accordance with Sections 61 to 65 of the Act - may be proved in accordance with the provisions of Section 65B.
Now the long standing debate pertains to Section 65B of the Act, which has perplexed courts deciding admissibility of electronic evidence during the course of trial. According to this provision, 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 shall be deemed to be also a document, provided the conditions mentioned under this section are satisfied.
In other words, the legislature, by way of a deemed fiction, has made a computer output also a document/primary evidence, provided the conditions mentioned in Section 65B of the Act are fulfilled. Before the year 2000, it was treated as secondary evidence but now after the enactment of Section 65B, it shall be treated as a document/primary evidence in order to prove the contents of the original.
Sub-section 4 of Section 65B of the Act states that when a party desires to produce secondary evidence as primary evidence as per Section 65B (1), a certificate is required to be produced stating any of the things mentioned under Section 65B (4) of the Act. When a certificate so required is produced by a party with regard to a computer output, it shall be deemed to be treated as a document/primary evidence.
A legal conundrum arose as to whether the requirement of certificate mentioned under Section 65B(4) is a mandatory pre-condition before producing a secondary evidence as a document/primary evidence?
The first case in which such issue arose was Navjot Sandhu v. NCT Delhi, wherein a two-judge Bench of the Supreme Court held that even if a certificate is not produced as per the requirement mentioned under Section 65B (4) of the Act, electronic evidence is not held to be per se inadmissible. It can still be proved as per Section 63 read with Section 65 of the Act as secondary evidence. The issue with such position was that the Supreme Court, by giving such wide interpretation, had prima facie defeated the legislative intent behind enacting Section 65B of the Act.
For almost a decade, the law laid down in Navjot Sandhu’s case was followed throughout the country. The said position was re-considered in Anvar’s case, wherein a three-judge Bench of the Supreme Court rectified the error committed in former case and held that Section 65B is a special provision that overrides Section 65, which is a general provision. The Court also held that any documentary evidence by way of an electronic record shall be proved only when accompanied by a certificate as prescribed under Section 65B(4). In absence of such certificate, secondary evidence of electronic records/computer output is per se inadmissible in evidence.
Hence, Section 65A and Section 65B makes the applicability of Section 63 and 65 redundant with respect to computer output, which is secondary evidence.
In Sonu v. State of Haryana, although the Court relied upon the decision in Anvar’s case, it held that Section 65A and Section 65B relate to mode of proof of the electronic record and not of its admissibility. The requirement of certificate is merely is a procedural defect which can be cured when an objection is raised by a party when the document was adduced as evidence during the course of trial and not at any other stage, it was held.
The said position also needs to be re-considered in view of the very title of Section 65B, which starts with the word ‘admissibility’ of electronic records and not their proof.
In Shafhi Mohammed’s case, a two-judge Bench took a view contrary to Anvar’s case and held that requirement of certificate under Section 65B(4) is procedural and can be relaxed by the court in the interest of justice. Such a requirement is not mandatory if a party is not in a position to produce it. Moreover, it is also open for a party to produce a computer output as secondary evidence in terms of Sections 63 and 65 of the Act.
The Supreme Court in Arjun Pandit’s case had finally taken note of the conflicting views taken in Anvar’s case and Shafhi Mohammed’s case, and referred the matter to a larger bench for re-consideration.
While answering on the reference, the Supreme Court has finally held that requirement of a certificate is a pre-condition to the admissibility of evidence by way of electronic record under Section 65B of the Act, while upholding the law laid down in Anvar’s case. In the absence of such certificate, a party cannot let in electronic evidence and it is per se inadmissible as per Section 65B of the Act.
It is thus abundantly clear that there is a complete bar on a party to adduce any electronic evidence unless accompanied by a certificate as mentioned under Section 65B of the Act.
The author is an Advocate practicing before the Supreme Court of India.