Friday, December 4, 2015

Proving a Point - Electronic Evidence

I was recently reading the decision of the Supreme Court in Shamsher Singh v. State of Haryana [Crl. Appeal No. 1525/2015 decided on 24.11.2015]. The scope of the appeal was quite narrow: the Appellant had challenged lower court orders dismissing his Application for exhibiting a CD in defence evidence. The CD reportedly contained recorded conversations revealing exculpatory material. 

The Court, unanimously, reversed these orders and directed that the Application be allowed for the CD to be exhibited as evidence and sent to FSL for analysis. In arriving at this conclusion, the Court referred to Section 294 of the Cr.P.C., as well as Section 3 of the Evidence Act. The Court made it clear that defence evidence was very much admissible. But it is the Court's interpretation of the latter part - on how to treat the CD - that is of specific interest.

In the recent four-part series on  Electronic Evidence, I argued that the Supreme Court has expressed great fears of tampering in electronic evidence (specially tape-recorded conversations), and imposed these fears on the law while being unfaithful to the clear, unambiguous text of statute. I mentioned how the Court continues to use decisions such as Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611], a decision laying down tests of admissibility for such evidence, despite Section 65-B having radically altered the law afterwards.

Something similar seems to have happened in Shamsher Singh. The Court was considering whether to admit a conversation recorded on a CD Rom into evidence. This material was clearly secondary electronic evidence which would attract Section 65-B to first be 'deemed' to be a document, and then rendered admissible. These items are 'electronic records' first and foremost, and Section 65-B creates this deeming fiction to insert them into the scheme of the Evidence Act, 1872. However, there is no mention of Section 65-B or the idea of a certificate. The Court merrily assumes that the CD Rom is a document - ignoring the scheme created by Section 65-B and the Information Technology Act, 2000.   

The Supreme Court relied solely on two decisions - R.M. Malkani  v. State of Maharashtra [(1973) 1 SCC 471] and Ziyauddin Barhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors. [(1976) 2 SCC 17]. Both of these (one of which was discussed in detail here on this blog) laid down conditions for admissibility of tape-recorded evidence at a time when the Evidence Act was rather silent on how to deal with these items (easy tampering being a concern). Subsequently, the legislature inserted statutory requirements by way of Sections 65-A and 65-B to address those issues. But as we see here in Shamsher Singh, the Court continues to rely upon judicial tests admittedly stricter, to the extent it completely ignores statutes  

NOTE: Shamsher Singh is a rather bad decision though I think. Because the Court does not even mention Anvar v. Basheer [(2014) 10 SCC 473], where three judges re-wrote Sections 65-A and 65-B in the spirit of earlier judicial tests to make the law stricter for addressing tampering concerns. The decision in Shamsher Singh to admit the CD Rom would have been affected by this single fact of whether a certificate was produced and was contemporaneous. 

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