Apex Court clears the air on Section 65B, Evidence Act

The onset of technology and its involvement in our personal lives also brings various challenges of the applicability and acceptability of such technology in more traditional and conventional setups. For example, many people find it intriguing that whether an Agreement made over Email will have the same validity as an agreement made on paper and in person. Interestingly we live in a world where technology makes our jobs easier and brings people closer as well. In many scenarios, it has become an alternative to the physical world. This can experience in present times, where the Internet is the fundamental tool that enables people to work from homes. To answer the previous question, in the context where the internet is an alternative to the physical means of communication, the agreements made Via Email are valid and are recognized by law as per The Information Technology Act,2000. The applicability of such principle of an alternative route enabled by technology also brings in the question of whether an Electronic record such as a video file, a document on a hard disk or an audio file in a computer or other devices is admissible in the court of law as ‘Evidence’.

The admissibility of the aforementioned electronic records are provided by S.65B of The Indian Evidence Act,1872. Just like the conventional and statutory rules, which apply to all kinds of Non electronically produced documents and other pieces of evidence, this particular section deals with ‘Electronic Records’. It explains the scenarios and requirements for admission of electronic records as secondary evidence. It also stipulates that it should be produced and accompanied with a ‘certificate’ that authenticates and verifies the authenticity of the said record.

In the year 2018, a judgment was passed by the Hon’ble Supreme court of India , named as Shafi Mohammad vs. The State of Himachal Pradesh,(2018) 2 SCC 801 . Considered to be a landmark judgment for the interpretation of Electronic Evidence, it laid down some key guiding principles for dealing with Secondary evidence in Electronic Form. 

The court observed that the certificate under Section 65B(4) is merely a procedural requirement and it will only apply to the person who has control over the device and hence in a position to provide with the said certificate. The court explained that a party who is not in the possession of the device, from which the document is to be produced, cannot be expected to provide such a certificate under section 65B(4). Therefore in certain circumstances, the certificate under 65B(4) is not mandatory and It is merely a procedural law.

In a recent development in the subject matter of ‘Admissability of Electronic Evidence’, this Judgement of Supreme court was overruled in the case of ARJUN PANDITRAO KHOTKAR  v. KAILASH KUSHANRAO GORANTYAL AND ORS. The court held that in the case of Shafi Modmd(supra). , the division bench had relied on the premise that an individual not having access to a device with the original record cannot produce the said certificate under S 65B(4), however, such a premise is wholly incorrect.

In para 43 of the judgement, the court explains that an application can always be made to a judge for production of a certificate from the requisite person under 65B(4). This statement was substantiated by various methods through which the court can order and ask for documents. Reliance was made on Order XVI Rule 6, Rule 7, Rule 10  of Civil Procedure Code and Section 91 of Criminal Procedure Court. Therefore, due to these reasons, the court laid down that a certificate under S.65B(4) is a prerequisite condition for the admissibility of an electronic record under S.65B, even if the individual has the device in possession or not.

While many argued that Shafi Mohd. would bring in various complications in to the Mandatory Nature of certificate under 65B as described by the Judgement in Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473, the division bench of Supreme Court cleared the air of confusion by overruling the Shafi Mohd. Judgement and Holding the validity of Anwar P.V. subjected to certain clarifications.