The Supreme Court recently, Vide Judgment & Order dated July 14, 2020 in Civil Appeal Nos. 20825-20826 of 2017 titled Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal & Ors., gave finality to a legal conundrum pertaining to the requirement of certificate before producing electronic evidence under Section 65-B of the Indian Evidence Act, 1872.
Section 65-B of the Indian Evidence Act, 1872 engrafts the procedure regarding admissibility of electronic records. Sub-section 4 of Section 65-B 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.

A Two-Judge Bench comprising Justices Ashok Bhushan & Navin Sinha had referred the question in view of the conflict between [Anvar P.V Vs. P. K. Basheer & Ors., (2014) 10 SCC 473] and [Shafhi Mohammad Vs. State of Himachal Pradesh, (2018) 2 SCC 801]. On this reference, a Three-Judge Bench comprising Rohinton Fali Nariman, Ravindra Bhat & V Ramasubramanian delivered its Judgment, and held that requirement of a certificate which is a pre-condition to the admissibility of evidence by way of electronic record under Section 65-B of the Indian Evidence Act, 1872 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.

The Supreme Court observed that application can be made to the Trial Court to direct a person to produce the certificate under Section 65-B (4) of Indian Evidence Act, 1872 on the refusal of such person to produce the same otherwise.

45..............In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, C. P. C or Cr. P. C. Once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.......

Taking note of the rights of the accused in a Criminal Trial, the Bench further added:
50....... However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65-B (4) of the Evidence Act, and require that such certificate be given by such person/persons.

This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the Cr. P. C.

It is necessary to set out the relevant provisions of the Evidence Act and the Information Technology Act, 2000.

Section 3 of the Evidence Act defines document as follows:

Document:
Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Evidence in Section 3 is defined as follows:

Evidence:
Evidence means and includes:

1. all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
2. all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.

The Evidence Act also declares that the expressions Certifying Authority, electronic signature, Electronic Signature Certificate, electronic form, electronic records, information, secure electronic record, secure digital signature and subscriber shall have the meanings respectively assigned to them in the Information Technology Act.

Section 22-A of the Evidence Act, which deals with the relevance of oral admissions as to contents of electronic records, reads as follows:
22A. When oral admission as to contents of electronic records are relevant. -- Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.

Section 45A of the Evidence Act, on the opinion of the Examiner of Electronic Evidence, then states:

45A. Opinion of Examiner of Electronic Evidence.-- When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.

Explanation:
For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.

Sections 65-A and 65-B of the Evidence Act read as follows:

65A. Special provisions as to evidence relating to electronic record.--The contents of electronic records may be proved in accordance with the provisions of section 65B.

65B. Admissibility of electronic records:

1. Notwithstanding anything contained in this Act, 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
   
2. xxxx
3. xxxx
   
   

4. In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say:

   1. identifying the electronic record containing the statement and describing the manner in which it was produced;
      
      
   2. giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
      
      
   3. dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
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   The following definitions as contained in Section 2 of the Information Technology Act, 2000 are also relevant:

   (i) computer means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network;
   
   (j) computer network means the inter-connection of one or more computers or computer systems or communication device through– (i) the use of satellite, 18 microwave, terrestrial line, wire, wireless or other communication media; and (ii) terminals or a complex consisting of two or more interconnected computers or communication device whether or not the inter-connection is continuously maintained;
   
   (l) computer system means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions;
   
   (o) data means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;
   
   (r) electronic form, with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;
   
   (t) electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
   While doing so, the Supreme Court upheld the law laid down in Anvar's case (supra), wherein, it was held that Sections 65-A and 65-B 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 65-A and 65-B were added under Chapter V of the Indian Evidence Act, 1872 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 65-B.

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 65-A and 65-B in the Indian Evidence Act, 1872.

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 62 (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 65-A 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 65-B.

Now the long standing debate pertains to Section 65-B 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 65-B of the Act are fulfilled. Before the year 2000, it was treated as secondary evidence but now after the enactment of Section 65-B, it shall be treated as a document/primary evidence in order to prove the contents of the original.

Sub-section 4 of Section 65-B of the Act states that when a party desires to produce secondary evidence as primary evidence as per Section 65-B (1), a certificate is required to be produced stating any of the things mentioned under Section 65-B (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 65-B (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 [State (NCT of Delhi Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600], 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 65-B (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 65-B 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 65-B 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 65-B (4). In absence of such certificate, secondary evidence of electronic records/computer output is per se inadmissible in evidence.

Hence, Section 65-A and Section 65-B makes the applicability of Section 63 and 65 redundant with respect to computer output, which is secondary evidence.

In Criminal Appeal No. 1418 of 2013 titled [Sonu @ Amar Vs State of Haryana], decided on July 18, 2017 although the Supreme Court relied upon the decision in Anvar's case, it held that Section 65-A and Section 65-B 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 65-B, 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 65-B (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 brief facts necessary to appreciate the controversy, as elucidated in Civil Appeals 20825-20826 of 2017, are as follows:

Arjun Panditrao Khotkar, a four-time MLA, contested the election in 2014 from 101-Jalna Legislative Assembly Constituency) to the Maharashtra State Legislative Assembly for the term commencing November, 2014 and won with a margin of 296 votes against Congress's Kailash Gorantyal. Election Petition No. 06 of 2014 was filed by the defeated Congress (I) candidate Shri Kailash Kishanrao Gorantyal, whereas, Election Petition No. 09 of 2014 was filed by one Shri Vijay Chaudhary, an elector in the said constituency.

The entirety of the case before the High Court had revolved around four sets of nomination papers that had been filed by the Returned Candidate. It was the case of the present Respondents that each set of nomination papers suffered from defects of a substantial nature and that, therefore, all four sets of nomination papers, having been improperly accepted by the Returning Officer of the Election Commission, one Smt. Mutha, (hereinafter referred to as the RO), the election of the Returned Candidate be declared void. In particular, it was the contention of the defeated candidate that the late presentation of Nomination Form Nos. 43 and 44 by the Returned Candidate - inasmuch as they were filed after the stipulated time of 3.00 p.m. on 27.09.2014 - rendered such nomination forms not being filed in accordance with the law, and ought to have been rejected.

Relying on video camera footage outside the Returning Officer's Office, it was alleged that Khotkar filed his nomination papers at 3:53 pm, beyond the deadline of 3 pm on September 27, 2014. Khotkar, on the other hand, stated the he had handed over the nomination forms at 2:20 pm.

The Aurangabad Bench of the Bombay High Court asked the Election Commission to produce the entire record of the election, including the original video recordings. A specific order was made that this electronic record needs to be produced along with the ‘necessary certificates'. Though the Commission did not produce a certificate in writing, the Returning Officer in her cross-examination stated that there was no Complaint with regard to the working of video cameras at her office.

Based on this substantial compliance of the requirement of giving a certificate under Section 65-B of the Evidence Act, it was held that the CDs/VCDs were admissible in evidence. Thus, based on this evidence, the Bench of Justice T. V. Nalawde on November 24, 2017, ruled the election of Khotkar as void.

Khotkar thus approached the Supreme Court of India in appeal, contending, among other things, that without the necessary certificate in writing under Section 65-B (4) of the Evidence Act, the CDs/VCDs upon which the entirety of the Judgment rested could not have been admitted in evidence. The Supreme Court 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 65-B 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 65-B of the Act.

The Supreme Court has further held that required certificate under Section 65-B (4) is unnecessary if the original document itself is produced. In this regard, the bench observed thus:
32. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him.

In cases where the computer, as defined, happens to 38 be a part of a computer system or computer network (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65-B (1), together with the requisite certificate under Section 65-B (4). This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which reads as:
…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act….

This may more appropriately be read without the words under Section 62 of the Evidence Act,…. With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.

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 65-B of the Act.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]