ELECTRONIC EVIDENCE: THE UNFERTILE CROP
ELECTRONIC
EVIDENCE: THE UNFERTILE CROP
Digital
images are no different from the droplets of rain that fall, merge, and then
divide: there is no telling whether the droplets that split are identical to
the droplets that came together to form the larger droplet[2].
INTRODUCTION
Law may be divided
into substantive and procedural laws. The laws by which rights, duties and
liabilities are defined are called substantive law whereas laws which prescribe
mode by which application of substantive law is regulated are called procedural
law. Law of Evidence is a judicial recognition to the system of logical
reasoning. The Indian Evidence act, 1872 is a bunch of 167 sections divided
into 11 chapters and 3 parts.
Part II, Chapter V
is headed as “of Documentary Evidence” is of relevance for our
discussion in this article. At the threshold, it is submitted that the proving
of oral evidence are in contrast to the proving of documentary evidence.
The system of
documentary evidence revolves around 3 check posts:
Relevancy,
Admissibility and Prove.
There is no concrete
rule for a documentary evidence as to
which check post have to pass first and which check post to latter. Though the
general practice is that the document has to pass the test of relevancy primarily
before it went into check post of admissibility. Though there are situations
which speak otherwise. For example, Section 68 of Evidence act which asked the
attesting witness to be examined primarily before court went into test of
relevancy and admissibility. Hence, Section 68 put “prove” as primary check
post.
If Relevancy is a
Horse, admissibility is chariot.
Chariot cannot run without Horse. 65B is that exception which put chariot
before Horse.
Section 65B is also
one of those instances which make departure from general rule. Section 65B put
admissibility as Primary check post. Thus, without ensuring compliance of 65B
check post, the question of relevancy and prove cannot be looked into.
Document means any
Information expressed on any substance for purpose of recording whereas
Evidence means Oral Evidence and Documentary Evidence.
Section 61 states
that the content of document can be proved either by primary evidence or
secondary evidence.
Section 62 states
where the document itself is produced then it would be considered as primary
evidence. Section 63 read with Section 65 list out the circumstances under
which content of a document can be proved by secondary evidence.
ELECTRONIC
EVIDENCE
With the advancement
of technology, the production of electronic evidence is becoming common
practice to secure the justice. At the same time it must not be forgotten that
the electronic records are more vulnerable to tampering and alterations. Thus,
electronic records cannot be looked upon with same standard as that of ordinary
documentary evidence.
The Document though
expressly does not include electronic evidence but the term documentary
evidence does include electronic record by virtue of definition of Evidence and
deeming fiction of Section 65B.
The term electronic
evidence, computer, computer system and information have the same meaning as
defined under Information technology act, 2000.
Section
22A states that the contents of electronic record
cannot be proved unless the genuineness of electronic record is proved. Section
45A gives a defense to raise objection with respect to genuine of
electronic record where opinion of expert would be a relevant. Section 65 makes
a clear distinction between “existence”,
“condition” and “contents” of documentary evidence.
Section
136 of Evidence act, 1872 has 3 parts where 2nd
Part states that where a fact is to prove by another fact then the latter fact
to be proved first. E.g. where the site plan of sale deed is to be proved then
the sale deed is to be proved first. Section
65B is based upon II nd Part of Section 136 where content of electronic
evidence can be proved if electronic evidence is proved first.
Section
65A and Section 65B starts with a marginal note
as to “special provision”. Section 65A states content of
Electronic record can be proved through compliance of Section 65B. Section 65B has
5 sub-sections where (1) to (3) list out conditions to be fulfill which largely
revolve around the working conditions of computer during the period when
electronic record is produced. Section 65B(4) which is of great controversy
states that the person who is having responsibility of that device or the
person who having responsibility of management of relevant activities of
computer will give a statement on certificate.
The statement under
certificate is best of his knowledge and belief. (This “and”
to be read as “OR”)[3].
CONTROVERSY
The
moot question would be whether this Certificate under Section 65B (4) is
mandatory ? Also, Whether departure can be made if certificate could not be produced?
To answer this
question, we need to look at the genesis from where Section 65B has taken its
origin into Evidence act. Section 65B is exact reproduction of Section 5 of UK
Civil Evidence act, 1968 with minor changes.
It is pertinent to
note that when the IT Act, 2000 was in draft mode, this Section 5 of UK Civil
Evidence act, 1968 (on which Section 65B is based) was repealed and replaced by
UK Civil Evidence act, 1995. The Law commission who suggested the repeal of
same has observed that there are largely two types of evidence – Direct
evidence and hearsay evidence and electronic evidence are more in nature of
hearsay evidence due to current safeguards (i.e. Certificate + Conditions
similar to Section 65B) which seem to be
only illusionary and not real safeguards. However, despite such observations,
law makers in India stuck to old repealed provisions of Section 5 of UK
Evidence act, 1965 and incorporate the same under Section 65B of Indian Evidence
act, 1872.
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 of any contents of the
original or of any fact stated therein of which
direct evidence would be admissible
Section 65B(1) used
the non-obstante
clause which means the general rule with respect to documentary
evidence cannot be used as a standard for electronic records. Section 65B(1) has made a clear
recognition of Primary evidence and
Secondary Evidence. In fact Section 65B has given sanctity to the
secondary Evidence.
“any information contained in
electronic record” means
primary evidence. This means the electronic record where information is stored
for the first time. E.g. where a video is record on a Mobile Phone or Laptop
then the production of very mobile phone or laptop is primary evidence.
“printed on a paper,
stored, recorded or copied in optical or magnetic media produced by a computer”
means
secondary evidence. Thus where the video recorded in Laptop/Mobile Phone is
copied to Pen-drive/CD and submits to court then that very Pen-Drive/CD would
be Secondary evidence.
This secondary
evidence can be admissible only if the conditions of Section 65B are fulfilled
and not otherwise. However, where the party itself produced the Primary
Evidence (I.e. the laptop, mobile phone itself) then the operation of Section
65B is of no mandate because the document is proved by primary evidence itself.
The deeming
fiction is added to Section 65B (1) because the definition of
document do not expressly include electronic record.
Section 65A and 65B
being a code in itself with respect to electronic record and thus in absence of
compliance of them, the general standard of proving documentary evidence cannot
be looked into.
However, the
important question is what would be the consequence if the party, who has been
asked by the court, could not produce the electronic evidence/ Certificate
under 65B due to reason that the person in authority is not giving the
certificate to party concerned for any reason.
To answer this
situation, Two Latin maxims become important.
1.
first is lex non cogit ad
impossibilia i.e. the law does not demand the impossible,
and
2.
impotentia excusat legem
i.e. when there is a disability that makes it impossible to obey the law, the
alleged disobedience of the law is excused.
In Re Presidential
Poll[4],
the provisions were mandatory, which could not be satisfied owing to an act of
God. The Court excused the mandatory provisions on account of these maxims.
These maxims have
been applied by Indian courts also in different
situations in
1.
Chandra Kishore Jha v. Mahavir Prasad
and Ors[5]
2.
Special Reference 1 of 2002[6]
and
3.
Raj Kumar Yadav v. Samir Kumar
Mahaseth and Ors.
4.
Raj Kumar Dubey v. Tarapada Dey and
Ors[7].
Section
165 of Evidence act, 1872 gives immense power
to the court to ask any question in any form at any stage to any party/person
concerned in litigation with a rider of self-incrimination. Section 91 of Crpc read with Section 311 Crpc gives party
an opportunity to file an application before court to produce any document or
thing to the court. Similarly, Order
XVI Code of Civil Procedure, 1908 also entitle a party to file application
before court praying production of any document/thing.
Section 65B does not
talk about “stage” at which the certificate is to
be submitted. Though, the general practice for submission is to produce it at
the time of adducing the evidence. However, the justice delivery system is not
having same standard for both civil and criminal trial. In a criminal trial,
the accused must be provided with all the documents including electronic
evidence before commencement of trial so that he would be able to prepare his
defense which is essential for fair trial. At the same time, Section 178 confers Police to submit the
supplementary charge sheet with additional document including electronic
records. Similarly, the parties can be application under Section 311 Crpc to
allow production of any document including electronic evidence post trial. To
plug in the abuse of process, Internet provider and cellular companies must
adhere to the mandate of Section 67C
of IT act, 2000 in tune with Section 39 of Evidence act to retain the data in
segregated and separate form if it form part of an Investigation.
Hence,
the court has to maintain the balancing between rights of accused and rights of
prosecution while allowing compliance of Section 65B.
Hence,
where despite all the efforts a party could not produce the certificate as
required under Section 65B then the mandatory provisions of 65B can be excused
for impossibility to perform by that party concerned. Alternatively, Court
would order the production of certificate to the person in authority of same.
PRESENT
JUDICIAL POSITION
In State (NCT of
Delhi) v. Navjot Sandhu, two Judge bench irrespective of the
compliance with the requirements of Section 65-B, which is a provision dealing
with admissibility of electronic records, there is no bar to adducing secondary
evidence under the other provisions of the Evidence Act, namely, Sections 63 and
65.
In Anwar P.V. v. P.K.
Basheer & Ors[8].
a three Judge Bench decision of this Court held that the requirement of
Certificate under Section 65B is mandatory and overruled the judgment of Navtoj Sandhu to the extent of its
observations on Section 65B.
In Vikram Singh and
Anr. v. State of Punjab and Anr[9],
a three-Judge Bench of this Court followed the law in Anvar P.V. (supra),
clearly stating that where primary evidence in electronic form has been
produced, no certificate under Section 65B would be necessary.
In Shafhi Mohammad v.
State of Himachal Pradesh[10]
, two judges bench held that whenever the interest of justice required, the
requirement of a certificate could be done away with under Section 65B (4).
In Tomaso Bruno and
Anr. v. State of Uttar Pradesh[11]
following Navjot Sandhu (supra)
that secondary evidence of the contents of a document can also be led under
Section 65 of the Evidence Act to make CCTV footage admissible.
Resting the
controversy on 14th July 2020
In Anvar P.V. is the
law declared by this Court on Section 65B of the Evidence Act is a correct law
and The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down
the law correctly. Also, the judgment in
SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the
judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law
correctly and are therefore overruled.
CONCLUSION
1.
Section 65A & 65B contains a code
in itself with respect to electronic evidence and is a mandatory requirement
with respect to admissibility of electronic (documentary) evidence.
2.
Two situations where requirement of
Section 65B need not to perform:
a)
Where primary evidence itself is
produced
b)
Impossibility to produce the same.
3.
Section 65B requires relook by
legislators[13].
4.
Legislator required coming up with a
law regulating the data retention with respect to Section 67C of IT act, 2000[14].
DISCLAIMER
The views and opinions expressed in this article are those
of the authors and do not necessarily reflect the official policy or position
of any agency of the Indian government. Examples of analysis performed within
this article are only examples. They should not be utilized in real-world
analytic products as they are based only on very limited and dated open source
information. Assumptions made within the analysis are not reflective of the
position of any Indian government State.
The author is a Practicing company secretary and founder of
Budhiraja & co. He is a Final year
Law student at faculty of law, University of Delhi besides associated as Para
Legal volunteer with Delhi State Legal Service authority and core member of
moot court society of its college.
+919654055315
[2]
Stephen Mason, Electronic evidence and the meaning of “original”, 79 Amicus
Curiae
26 (2009)
[3] R.F. Nariman, J, PARA 23,
Civil appeal No. 20825 of 2017
[4] (1974)
2 SCC 33
[5] (1999)
8 SCC 266 (at paragraphs 17 and 21)
[6] (2002)
8 SCC 237 (at paragraphs 130 and 151)
[7] (1987)
4 SCC 398
[8] (2014)
10 SCC 473
[9] 2017)
8 SCC 518
[10] (2018)
2 SCC 801
[11] (2015)
7 SCC 178
[12] Civil
appeal No. 20825 of 2017
[13] Ramasubarmanian
J, PARA 45, Civil appeal No. 20825 of
2017
[14]
R.F. Nariman, J, PARA 72, Civil appeal No. 20825 of 2017
Good and very informative Article
ReplyDelete- Isha