Acceptance of Digital Evidence Found with a Defendant
Let’s examine a scenario where a law enforcement officer discovers a compact disc in the possession of a defendant during a search conducted at the defendant’s residence. This compact disc contains a crucial conversation between two defendants that could definitively establish a conspiracy between them. However, the investigating officer couldn’t locate the devices used to record the conversation and create the compact disc. In such a situation, is it permissible to use the compact disc found with the defendant as evidence during the trial?
In light of a decision by the Honorable Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (referred to as Arjun’s Case), dated July 14, 2020, the initial response might be that the compact disc is an electronic output and can be admitted if a certificate under Section 65B of the Indian Evidence Act, 1872 (hereafter referred to as Sec. 65B) is obtained. However, a perplexing question arises: when a flash drive is found in the possession of a defendant, who is responsible for providing the certificate under Section 65B?
Interpretations by the Honorable Supreme Court in the past two decades
In the case of State (N.C.T. Of Delhi) vs. Navjot Sandhu@ Afsan Guru (referred to as Sandhu’s Case), the Honorable Supreme Court examined Section 65B with regard to its mandatory compliance for the first time. In this case, the Supreme Court held that, regardless of whether the requirements of Section 65B are met, there is no prohibition on presenting secondary evidence under other provisions of the Evidence Act, namely Sections 63 & 65.
The Supreme Court, therefore, relaxed the provisions of Section 65B by making it non-mandatory. However, this judgment faced criticism for not considering the non obstante clause of Section 65B and the well-established principle of Generalia specialibus non derogant.
The criticisms raised in the Sandhu’s case were subsequently addressed by a 3-Judge bench of the Supreme Court in Anvar P.V vs. P.K. Basheer & Ors (referred to as P.V. Anvar’s Case). In this case, the Supreme Court overruled its previous decision in Sandhu’s case and explicitly stated that Section 65B of the Indian Evidence Act, 1872, is a specially enacted provision and takes precedence over other general provisions under the same Act.
The Supreme Court further explained that primary evidence concerning electronic records falls under Section 62 of the Evidence Act, while secondary evidence concerning electronic records is exclusively governed by Section 65B. The decision in P.V. Anvar’s case also outlined a specific procedure and format for producing the certificate under Section 65B. According to this ruling, all conditions specified in Section 65B(2) as well as Section 65B(4) are obligatory. The Supreme Court also mandated that without such a certificate, secondary electronic records would not be admissible under any other provision.
However, the P.V. Anvar’s case decision left certain ambiguities, leading to concerns expressed in various judgments of the Supreme Court and other High Courts. The decision did not address the issue of Prospective Overruling, which was identified and left to be decided by a larger bench of the Supreme Court in Sonu @ Amar vs. State Of Haryana (referred to as Sonu’s Case). Additionally, the P.V. Anvar’s case did not discuss when the certificate should be produced.
The matter was raised, and an attempt was made to clarify it by the Honorable Madras High Court in K. Ramajayam v. Inspector of Police (referred to as Ramajayam’s case) and the Honorable High Court of Delhi in Kundan Singh v. State (referred to as Kundan’s case). These cases held that it is necessary to provide the certificate (under Section 65B) only at the stage of presenting evidence, not during the collection of evidence.
Furthermore, the P.V. Anvar’s case did not provide detailed guidance regarding Section 65B(4), which states that the certificate must be signed by a person in a responsible official position related to the operation of the relevant device or the management of the relevant activities (as appropriate).
There were uncertainties about who could be considered a person holding an official position. This aspect was also clarified by the Delhi High Court and Madras High Court in Kundan Singh’s case and Ramajayam’s case, respectively. They clarified that the term “officially” is not limited to individuals holding a public office but refers to those primarily responsible for managing, using, upkeeping, or operating such a device.
The P.V. Anvar’s case decision also created confusion regarding the practical application of the specified conditions. The decision required compliance with all conditions under Section 65B(2) and Section 65B(4) to produce the certificate under Section 65B. This strict interpretation made it impossible to prove electronic records held by third parties as electronic evidence. A similar issue arose in cases involving electronic records recovered from accused persons, where the accused cannot be compelled to provide a certificate under Section 65B.
The decision in N. Banu & ors v. State of Tamil Nadu of the Madras High Court reflected this issue, where electronic records recovered from accused persons could not be proved due to the mandate in P.V. Anvar’s case.
The shortcomings in the P.V. Anvar’s case were subsequently addressed in Shafhi Mohammad vs. The State Of Himachal Pradesh (referred to as Shafi’s case), where a division bench of the Supreme Court revived the position in Sandhu’s case, stating that the certificate under Section 65B is not mandatory.
The revival of Sandhu’s case clarified the legal position regarding the admissibility of electronic evidence, especially when a party does not possess the device from which the document is produced. Such parties cannot be required to produce certificates under Section 65B(4) of the Evidence Act. The requirement for the certificate, being procedural, can be relaxed by the Court when the interests of justice justify it.
While Shafi’s case resolved major conflicts in P.V. Anvar’s case, it left misinterpretations in the latter regarding the mandated conditions under Section 65B unaddressed. Additionally, Shafi’s case contradicted the decision in P.V. Anvar’s Case, which was decided by a larger bench. This issue was subsequently identified in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (hereafter Arjun’s case), where the Supreme Court observed that, in view of P.V. Anvar’s case, the pronouncement in Shafi’s case needs reconsideration and referred it to a larger bench.
In Arjun’s case, the Supreme Court addressed many of the issues mentioned above. Regarding the admissibility of electronic records in the possession of third parties, the Supreme Court noted that trial courts can invoke certain provisions in existing procedural laws to obtain certificates for electronic records from third parties. In this regard, the Supreme Court referred to:
- Section 165 of the Indian Evidence Act.
- Order XVI of the Civil Procedure Code, 1908 (CPC).
- Section 91 of The Code of Criminal Procedure.
The Supreme Court held that it is clear that the major premise of Shafhi Mohammad (supra) that such a certificate cannot be obtained by persons who do not possess an electronic device is entirely incorrect. An application can always be made to a Judge to obtain such a certificate from the requisite person under Section 65B(4) in cases where that person refuses to provide it.
As a result, the judgment of a Division Bench of the Supreme Court reported as (2018) 5 SCC 311, which followed the law incorrectly laid down in Shafhi Mohammed (supra), must also be overruled.
Effectively, in Arjun’s case, the Supreme Court overruled the judgment in Ramajayam’s case regarding evidence aliunde that can be provided through a person who was in charge of a computer device in lieu of the requisite certificate under Section 65B(4) of the Evidence Act.
Through the decision in Arjun’s case, the Supreme Court reinforced the decision in P.V. Anwar’s case that a certificate under Section 65 B(4) is mandatory and a prerequisite for admitting an electronic record into evidence. However, the issue of electronic records in the possession of third parties, as raised in Shafi’s case, does not apply to situations where the records are in the possession of the accused person. The prosecution cannot file a petition, and the trial court cannot suo moto order the accused under Section 91 CrPC to produce the certificate under Section 65B of the Indian Evidence Act for an electronic record recovered from the possession of the accused.
A Constitutional Bench of the Supreme Court in State of Gujarat v. Shyamlal Mohanlal Choksi has unequivocally held that an accused person cannot be compelled to produce any document under Section 91 CrPC. While a warrant can be issued to search and seize incriminating materials from the possession of the accused, the accused cannot be forced to produce a document. Such compulsion would violate the fundamental right against self-incrimination under Article 20(3).
Alternative Interpretations:
The series of decisions, progressively contradicting each other, suggests that some alternative interpretations may be needed to address concerns regarding Section 65B. It is also inferred from the observations and discussions in the Supreme Court’s judgments that there is no ambiguity in proving electronic records by individuals who control the device that produced the electronic record. Such individuals can produce the certificate under Section 65B in accordance with P.V. Anvar’s case.
The complexity arises only in cases where electronic records are held by individuals who do not control the device that produced the electronic record or in cases where accused persons cannot be compelled to produce a certificate. Alternative interpretations to that of P.V. Anvar’s case are required only in such cases.
One such alternative interpretation was provided in Shafi’s case, which was identical to Sandhu’s case in deciding that the provisions under Section 65B are not mandatory in the case of secondary evidence, and provisions under Section 65 can be considered even in cases of electronic records in the absence of a certificate under Section 65B. Although this interpretation was categorically rejected in Arjun’s case, the Supreme Court left the issue of proving electronic records recovered from an accused person unanswered.
The Supreme Court could have considered that in such cases, the deeming fiction under Section 65B would not be applicable, and therefore, such electronic records would remain as secondary evidence, which could be proven under Section 65 of the Indian Evidence Act, 1872, as held in Sandhu’s and Shafi’s Case. If they can be admitted as secondary evidence without certification under Section 65B of the Evidence Act, all types of electronic records/outputs recovered from accused persons can also be admitted as evidence.
Emphasis on:
The major issue with P.V. Anvar’s case is the misinterpretation regarding the requirement to satisfy all the conditions under Section 65B(2) and Section 65B(4) for the production of a certificate under Section 65B. The decision in P.V. Anvar’s case listed the conditions verbatim, which must be complied with for the certificate, reproducing all the clauses under Section 65B(2) and Section 65B(4).
In this regard, the Supreme Court in Arjun’s Case took the view that “doing any of the following things… must be read as doing all of the following things,” given the context. This interpretation means that the conditions mentioned in sub-section (4) must also be interpreted as cumulative.
An alternative interpretation in this regard may address the challenges related to the admissibility of electronic records recovered from accused persons. Section 65B(4) starts with “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…,” indicating that the certificate must do any of the following three clauses, not all three clauses. Therefore, one can interpret that the three clauses under Section 65B(4) provide for three types of certificates, contrary to the interpretation in P.V. Anvar’s case, which allowed only one type of certificate.
The three types of certificates under Section 65B(4) are:
a. Identifying the electronic record containing the statement and describing how it was produced.
b. Providing particulars of any device involved in the production of that electronic record to demonstrate that it was produced by a computer.
c. Addressing matters related to the conditions mentioned in sub-section (2).
It is evident that only sub-clause (c) pertains to matters related to clause (2). It is also clear that there could be matters to which clause (2) may not apply. In cases where clause (2) does not apply, certificates can be issued under sub-clause (a) or (b) of Section 65B(4).
The legislative intent envisioned under Section 65B(4) only requires (a) the statement to either identify the electronic record and describe how it was produced or (b) provide details of the device involved in its production to prove that it was produced by a computer. This interpretation gains significance in cases where computer outputs are held by third parties or recovered from accused persons. In such cases, certificates can be issued under Section 65B(4)(a) or (b) by third parties.
Conclusion
As described above, trial courts often face unique issues that are challenging to anticipate in advance. The statute and its interpretation by the Constitutional Courts should allow for the application of provisions even in the most unusual situations. The objective behind all these procedural safeguards is to ensure the source and authenticity of electronic records. Apart from ensuring this, the procedure should not hinder the presentation of electronic evidence.
A strict interpretation that imposes multiple conditions, as seen in P.V. Anvar’s and Arjun’s cases, leads to obscurities and difficulties in proving computer output in certain situations. Considering the growing reliance on technology in the effective administration of the criminal justice system, it is essential for the Supreme Court to revisit and clarify the admissibility of electronic records recovered from accused persons.
The Supreme Court should also consider that a purposive interpretation is required to provide sufficient room for encompassing and proving all types of electronic records under the ambit of the Indian Evidence Act, 1872.
Written by: Advocate Muskan Chauhan