The #InformationTechnology Act, 2000 which deals with digital and electronic records and documents had brought in its wake amendments in the #EvidenceAct 1872 (‘the Act’) to enable legal recognition of such digital and electronic documents. The law mandates any documentary #evidence by way of an electronic record under the Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65 B. Section 65 B deals with the admissibility of #electronicrecords. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.
Sections 65 A and 65 B of the Act, deals with electronic evidence and its admissibility in the Indian Legal System. In this article, the main discussion will be with respect to the requirement of a Certificate under Section 65 B (4) of the Act and the recent judgment on this point.
There is no ambiguity with regard to the fact that electronic records can be used as evidence. However, there is lack of clarity with regard to the procedure for admissibility of electronic evidence under Section 65 B (4) of the Act. The Supreme Court opined in the case of Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473,that any electronic evidence can be proved only in accordance with the procedure prescribed under Section 65 B of the Act. The Supreme Court in this case held that the purpose of these provisions is to sanctify electronic evidence. The necessity of giving an electronic certificate as required under Section 65 B is mandatory for treating such evidence as admissible in law.
Recently, three Judges Bench of Hon’ble Supreme Court of India in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, CA Nos. 20825-20826/2017 passed a Judgment dated 14.07.2020 dismissing the Appeals and holding that the certificate required under Section 65B (4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P. V. case.
The brief facts of the case is pertaining to the controversy that arose between the Appellant and the Respondent who were the nominees in an election. The dispute between the Parties related to their nomination papers in the election procedure. Election Petition was filed by the Appellant. During trial the Respondent relied on certain CDs/VCDs from the election office as evidence. The Appellant objected on the admissibility of the CDs/VCDs in the court as the said evidence was not supported by the ‘necessary certificate’ under Section 65 B of the Act. However, the High Court of Bombay relied on the statement of the CDs/VCDs operator in cross-examination that the said recordings were regularly recorded in the office and admitted the CDs/VCDs in evidence. Based on the said evidence without certificate, High Court declared election of the Appellant as void. High Court Order was challenged before the Supreme Court which referred the case to a larger bench of 3-Judges to decide on the issue of judicial interpretation of Section 65 B of the Act.
The Court was hearing a reference from the Division Bench, of the case reported as Shafhi Mohammad vs. The State of Himachal Pradesh [(2018) 2 SCC 801] which had ‘clarified’ that the requirement of a certificate under Section 64 B (4) being procedural, can be relaxed by the Court wherever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device, as a result of which such party would not be in a position to secure the requisite certificate.
Additionally, the issue was raised in Appeals in Arjun Panditrao Khotkar case that the law laid down in Anvar P. V. case requires reconsideration. However, the 3-Judges Bench held that the Shafhi Mohammad Judgment was incorrect and the law laid down in Anvar P. V. case is the correct law and as such does not require to be revisited.
In a reference the Court dealing with the interpretation of Section 65 B of the Act that deals with admissibility of electronic records, the Court clarified that the required Certificate under Section 65 B (4) is not essential if the original document itself is produced. It also held that if a certificate which is a pre-requisite for admissibility of evidence under Section 65 B cannot be obtained as the person or authority concerned ‘refuses’ to share it, then summons could be sent by the court to such person or authority to produce it. This is subject to discretion being exercised in civil cases in accordance with law, and the requirements of justice on the facts of each case.
Therefore, in light of the rapid increase in the use of computer and internet, electronic and digital documents in India, the Supreme Court has upheld the mandatory requirement of compliance under Section 65 B of the Act for admissibility of electronic evidence.
The Indian Lawyer & Allied Services