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Section 65B(4) evidence act : despite in SC decision in “Arjun panditrao” ,uncertainty looms around electronic evidence
On dated 14 July 2020, the three judge bench of Supreme Court delivered its
judgment in Arjun Panditrao Khotkar, in what anything to have been an authoritative ruling of law on electronic evidence. The judgment is support out of reference made by a respective two honourable judge bench in same matter, by an order dated on 26.07.2019. The reference was for to address the inconsistencies between decisions of two judge bench decision in Shafhi Mohammad(2018) and that of other three honourable bench of three judge in Anvar PV (2014).
The background of judicial uncertainty
In year 2014, the three judge bench in Anvar has overruled an previous judgment made in Navjot Sandhu and held that electronic records were class of their own and had to be proved only in accordance with procedure as per Section 65-B. Significantly, Anvar held that production of certificate under Section 65-B(4) is to be mandatory requirement for admissibility of electronic evidence. Gradually, judiciary began to signal its discomfort with Anvar's pronouncement on mandatory nature of certificate and viewed it as technical impediment of advancement in technological interventions in legal system. The three judge bench in Tomaso Bruno, without reference to judgment made in Anvar held that contents of an electronic record may also be proved under Section 65, Evidence Act, by treating it as ordinary secondary evidence. In 2018, the two judge bench in Shafhi Mohammadwhile relying on judgment in Tomaso Brunoheld held that electronic evidence is admissible as long as it’s "authentic and relevant" and deemed to fitted as relax in 'procedural requirement' of certificate when such person adducing such electronic evidence was not in custody of device.
The ruling in Arjun Panditrao
Considering ambiguity surrounding mandatory nature of certificate, the Court in Arjun Panditrao has held Shafhi Mohammad considered to be bad law and overruled for being in contravention of decision in three judge bench in Anvar. Further, decision in Tomaso Bruno has been declared per incuriam due to its ignorance of law set down by Anvar - the previously pronounced judgment of co-equal bench. Strongly mandatory nature of certificate, it’s held that certificate is "condition precedent" to admissibility of evidence by way of electronic record. To offer solutions to issue raised in Shafi Mohammed regarding difficulty of producing an certificate by party who is not in possession of electronic device, the Court suggests that it’s always possible for trial court to exercise its power for summon such certificate from requisite person. In fact, opinion of Justice R.F. Nariman goes one step further, to place an positive responsibility on judge conducting an trial, to summon such certificate when an electronic record is produced in its absence.
Arjun Panditrao - the uncertainty continues
The Court's ruling in Arjun Panditrao leaves several key issues pertaining towards acceptance and appreciation of electronic evidence unaddressed in its wake. One major issue emerges from decision of two honourable judges bench of respective Supreme Court in Sonu v. State of Haryana where it was held that plea regarding admissibility of electronic records on grounds towards non-production of certificate under Section 65-B, could not be entertained anymore before an appellate court, if an disapproval had not been taken place before an trial court. This ruling was based on finding that requirements of Section 65-B merely appropriate regarding issues of mode of proof, as opposed to existing inadmissibility of document, which issues could be considered by an appellate court as well. However, Arjun Panditrao's opinion towards mandatory certificate is condition model and at every core of admissibility of electronic records casts doubt over correctness of Sonu's categorization in issue as procedural requirement. Arjun Panditrao does not engage with issue decision set down in Sonu. Further, if it’s trial court's obligation to demand on production of 65-B certificate, the failure of advocate would raises an objection regarding non-production (as required by Sonu) ought for not to prejudice objection at an appellate stage. The Court's failure for engage with Sonu and delve into consequence that its judgment has on said issue, has maybe opened doors towards future litigation.
The future of electronic evidence
The requirement of certificate under respective Section 65-B as precondition towards admissibility of electronic records, rooted in belief that process of creating an computer output (i.e. obtaining a print out, or creating a CD) continues to be large part of open to malfunctioning and interfering. The Supreme Court in Arjun Panditrao, instead of settling such judicial disagreeing on electronic evidence, has introduced more ambiguities in law. One way or other, it appears that until legislature comeback with issue of inherent trust-worthiness in electronic records, judicial pronouncements will swing between concerns of authenticity in electronic evidence on one hand (tampering, malfunctioning etc) and ease of admitting electronic evidence, on the other.
