Whether Certificate u/s 65B of Indian Evidence Act mandatory? Latest Judgement on Electronic Evidence Law In India
The landmark verdict on electronic evidence Whether Certificate u/s 65B is mandatory? Latest Judgement by the Hon’ble Supreme Court of India. Every Learned Advocates, Investigation officers and common people must read this judgement.
इलेक्ट्रॉनिक साक्ष्य पर ऐतिहासिक फैसला: क्या भारतीय साक्ष्य अधिनियम की धारा 65 बी के तहत प्रमाणपत्र अनिवार्य है? भारत के माननीय सर्वोच्च न्यायालय द्वारा ऐतिहासिक निर्णय। प्रत्येक अधिवक्ता, जांच अधिकारियों और आम लोगों को इस निर्णय को पढ़ना चाहिए।
বৈদ্যুতিন প্রমাণের উপর ঐতিহাসিক রায়: ভারতীয় প্রমাণ আইনের 65বি ধারার শংসাপত্র বাধ্যতামূলক কিনা ? ভারতের মাননীয় সুপ্রিম কোর্টের সর্বশেষ যুগান্তকারী রায়। প্রত্যেক অ্যাডভোকেট, তদন্ত কর্মকর্তা এবং সাধারণ মানুষকে এই রায়টি পড়তে হবে।
To settle the two different interpretations between Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 and Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801, the mater was referred to larger Bench of Hon’ble Supreme Court of India. We all were waiting for the verdict to come which would rest in peace the two completely different approaches of interpretation of “may be” clause in section 65A that is whether statement u/s 65B of Indian Evidence Act is mandatory or not and this Judgement (Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal And Ors) solves many controversies regarding presentation, relevancy and admissibility of electronics evidence in Court room. In the following paragraphs I have tried to understand the gist of this recent landmark judgement which are as follows:
i). The judgement in Tomaso Bruno being per incuriam does not lay down the law correctly and the judgement reported as (2018) 5 SCC 311 and Shafi Mohammad do not lay down the law correctly and are hereby overruled.
ii) The certificate under Section 65B(4) is unnecessary if the original document itself is produced. If the owner proves a laptop, computer, computer tablet or a mobile phone owned or operated by him, bringing the same in the witness-box, on which the original information is first stored, the requirement of the statement or the certificate u/s 65B(4) is unnecessary.
iii) On the other hand, where the computer is part of a computer system or computer network and bringing the said system or network before the court is impossible then providing the information contained in such electronic record can only be in accordance with section 65B(1) along with requisite certificate u/s 65B(4) of Evidence Act. Hence, in that situation the clarification made in para 24 of Anvar P.V. Basheer does not required to be revisited.
iv) The direction issue in para 62 of Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal And Ors. judgement shall hereafter be followed by the court dealing with electronics evidence till rules and directions u/s 67C of I.T. Act and data retention conditions are formulated for compliance by telecom and internet service providers. In para 62, general directions are issued to cellular and internet service providing companies to maintain CDRs and other relevant records for the concerned periods in tune with section 39 of evidence act in a segregated and secure manner if a particular CDR or other records is seized during investigation in the said period. Concerned parties can then summons such records at the stage of defence evidence or if such data is required to cross examine a particular witness. The above direction in criminal trials be applicable till appropriate directions are issued under various relevant terms of the applicable license or u/s 67C of I.T. Act.
v) Appropriate rules and directions should be framed by exercising powers such as 67C of I.T. Act and framing suitable rules for retention of data involved in trial of offences, there segregation, rules of chain of custody, stamping and record maintenance. for the entire durations of trials and appeals and also in case of preservation of meta-data to avoid any corruption of data.
vi) Lastly, “appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.”
Finally, Hon’ble Supreme Court of Indian, concludes in the following celebrated way:
“46. It will be clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine-tuned their legislations. Therefore, it is the need of the hour that there is a relock at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu31 to Anvar P.V.32 to Tomaso Bruno33 to Sonu34 to Shafhi Mohammad.35”
(Source: Judgement by The Hon’ble Supreme Court Of India In Civil Appeal Nos. 20825–20826 Of 2017 Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal And Ors., With Civil Appeal №2407 Of 2018 and Civil Appeal №3696 Of 2018).
Now on analysis some issues are coming up which are as follows:
i) Not all the time the people will come before Court with clean hand and there may be cases where the litigant will come with devises with evidence already modified and what will be their point of reliability, especially when the Central Forensic Laboratories are not willing to accept the request for extraction of data or providing expert report with the suspected devices with a plea that they are over-burden.
ii) Will the ISP or MSP will make necessary arrangements to preserve their data in their original form till the completion of trail or appeal what is applicable?
iii) This judgement will help compel the stake-holders to come with appropriate rules under 67C of IT Act and materialist a draft rule in dealing with electronic evidence as it is high time to have a comprehensive rule for us to dispel all types of confusion in dealing with electronic evidence in Court room.
iv) A comprehensive rule in the wake of the provision of section 79A of IT Act(making arrangement for Examiner of Electronic Evidence) is highly required for assistance of various learned Courts throughout the country.
Do you agree with my view? Let me know your view regarding this landmark judgement and its effect in our day to day life and or you can send your queries/doubts regarding the electronic evidence laws in our country in this comment section.
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