Date: 20 October, 2020
by Anmol Kaur Sidhu, UILS, Panjab University
CITATION: 3 SCC 216
DECIDED ON: July 14,2020
BENCH: Justice Rohinton Fali Nariman, Justice S. Ravindra Bhat, Justice V. Ramasubramanian
TIMELINE OF FACTS:
In this case CD’s were produced without the written certificate as required under section 65B(4) of the Indian evidence act, 1872. The High Court admitted these in evidence holding that there was “substantive compliance” of the requirement under section 65B(4). It is also seen that all the efforts to obtain a certificate were unsuccessful.
Is it mandatory for a party relying upon Secondary Electronic Evidence to produce the Certificate contemplated by Section 65 B (4)?
At which stage Certificate contemplated by Section 65 B (4) is to be produced?
What are the powers of the Court if a Certificate is not produced?
In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 the issue concerning production and admissibility of electronic evidence or record came up before the Supreme Court.
In this case the Supreme Court didn’t distinguish between a normal document and an electronic record and drew an analogy and said that the special procedure provided by Section 65 B(2)&(4) of the Indian Evidence Act,1872 need not be followed and of certificate required by Section 65B(4) can’t be furnished then the electronic record produced without such compliance will still be admissible as secondary evidence.
But while giving this judgement the bench overruled this previous judgement and held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied.
Thus, in the case of CD, chip etc.,the same shall be accompanied by the certificate in terms of Section 65-B must be obtained and in absence of which it becomes inadmissible.
The court also said that the applicability of procedural requirement under Section 65-B(4) of the Evidence Act,1872 of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate and in control of the said device not being of the opposite party.
Where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded.
The Court has been given various powers to order the produce of certain documents under
Section 165 of the Act empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts
Order XVI of the Civil Procedure Code, 1908 deals with ‘Summoning and Attendance of Witnesses’ and the Court can issue orders for the production of documents; (iii) Sections 91 and 349 of the Code of Criminal Procedure, 1973. If the Certificate is not obtained at the earliest possible opportunity and the data was destroyed in due course of time.
However, the Supreme Court, by referring to the following two Latin maxims i.e. lex non cogit ad impossibilia i.e. the law does not demand the impossible, and 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.
The Supreme Court issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner..The Court further held that this direction should be applied in criminal trials till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act, 2000.
It may be observed that Section 65 B does not provide for any particular stage at which the certificate has to be produced. The Supreme Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 said that the certificate must be produced along with the submission of the secondary electronic evidence. In civil cases the certificate should be produced in accordance with the requirements of justice depending upon the facts of each case. In criminal cases however the documents must be provided before the commencement of the trial.
The court gave a landmark judgement in this case as there was a lot of conflict and confusion regarding the admissibility of the electronic evidence.
It might put the person relying on electronic evidence in a very difficult spot if they are unable to get the certificate but the judgement clearly states that if a person is not able to procure the certificate despite all their efforts then the court may excuse them in such a condition.
The court in this case itself admitted electronic evidence without certificate. As Justice Ramasubramanian said that the legislature should amend these laws in order to provide a better and clear procedure for the admissibility of electronic records.