Section 65B of Indian Evidence Act, 1872 states the process of the admissibility of electronic records to be used as evidence for a trial. The mode and manner of the permissible effects of section 65B have always been in question. However, the Apex Court has always tried through different judicial pronouncement to resolve the procedural conflict.
The recent case Shafhi Mohammad v. State of Himachal Pradesh decided by the Supreme Court has led the confusion as to what is the appropriate procedure for the admission and appreciation of electronic evidence under Section 65B read with Section 62 and 63 of the Indian Evidence Act, 1872.
In the year 2005, a full judge bench of the Apex Court State (NCT of Delhi) v. Navjot Sandhu & Ors decided on the fact that Section 63 of the Act means and includes, among other things, “copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”.
This led to a whole lot of confusion as it concluded that irrespective of compliance with the requirements of Section 65B, there is no bar to the admissibility of electronic evidence as secondary evidence under other provisions of the Evidence Act. In other words, we can say that this judgment made the requirement of production of an electronic evidence certificate under Section 65B as non-mandatory. But the legislative intent behind Section 65B is the production of the requirement of an electronic certificate to be essential in nature. Therefore, the aim of the section prescribed and the judgment declared by the Court differs, which in turn causes the uncertainty.
However, the Supreme Court rectified its mistake in Anvar PV v. PK Basheer by stating in its judgment that the requirement of giving an electronic certificate under Section 65B pertaining to any electronic evidence or electronic record is mandatory for treating such an evidence as admissible in law.
Thus, after the Anvar PV case, the position of the law came to be well settled that any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.
The position in the Anvar PV case was further relied upon by a Division Bench of the Supreme Court in the case of Sonu v. State of Haryana.
In the case of Shafhi Mohammad vs. State of Himachal Pradesh, the Division bench of the Supreme Court differed from the judgment given by the full bench held that the requirement of certificate under Section 65B is not always mandatory and can be dispensed with, in the interest of justice. In short, the bench in Shafhi Mohammad did not follow the principle of stare decisis (precedent).
The Supreme Court miscalculate in law by placing its reliance upon the case of Tomaso Bruno v. State of UP which had affirmed the approach adopted by the Navjot Sandhu case.
The Supreme Court, in the case of Roger Shashoua v. Mukesh Sharma, elucidated the well-settled principle of per incuriam and observed to the effect that:
“A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger bench”.
The judgments declared by the Supreme Court should be declared very carefully, as under Article 141 of the Indian Constitution the judgments declared by the Apex Court become the law of the land.
Therefore, the judicial pronouncement in the Shafhi Mohammad v. State of Himachal Pradesh calls for serious reconsideration by a larger bench of the Supreme Court of India.
On July 26, 2019, the Supreme Court, in the case of Arun Pandit Rao Khotkar v Kailash Khusan Rao, while understanding the gravity of the issue of electronic evidence, referred the Shafhi Mohammad case for reconsideration in the light of Anvar PV.
However, it is to be noted that it is not only the law laid down in the Shafhi Mohammad Case which requires reconsideration but also a few queries raised in the Sonu Case regarding the prospective and retrospective applicability of the Anwar PV Case itself.