(I am happy to host a Guest Post by Mr. Lakshya Gupta, who is a 2017 graduate of the National Law University, Delhi, and is currently practising criminal law in Delhi)
As has already been discussed on this blog, Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473, 'Anvar'] held that the only way to make electronic records admissible by way of secondary evidence is by adducing a certificate under Section 65-B of the Indian Evidence Act 1872. This blog has argued that:
a) As per Anvar, the certification under Section 65-B is the only mode of proof for secondary evidence of electronic records;
b) Sonu @ Amar v. State of Haryana [AIR 2017 SC 3441, 'Sonu'] made a distinction between ‘inherent admissibility’ of evidence and its ‘mode of proof’ and held that the requirement of certification under Section 65-B pertained to the latter and not the former;
c) Ruling in Anvar must be interpreted to mean that absent a certificate under Section 65-B, secondary evidence of electronic record is rendered inherently inadmissible;
d) Since Sonu which is a two-judge bench, ruled contrary to point c), it is at fault in not applying the law laid down by Anvar, which was decided by a higher bench of three judges.
I am in agreement with points a) and b). I, however, contest point c) and consequently d). Further, I argue that Sonu applies Anvar retrospectively and decides a different issue than the one determined by Anvar.
The ruling in Sonu
Sonu relies on a two-judge bench decision of the Supreme Court in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Anr. [(2003) 8 SCC 752, 'Venkatachala'] wherein a distinction was been made between admissibility of a document in itself (inherent admissibility) and the manner or mode through which it is sought to be made admissible. The Court in Venkatachala held that objections with respect to the former could be raised for the first time even at the appellate stage while objections with respect to the latter could not be raised once evidence had been tendered. According to Venkatachala (SCC version, paragraph 20), the:
“… crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular ...”
Viewed in light of the reasoning behind Venkatachala, the ruling in Sonu is that since the objection to admissibility (absence of certificate under Section 65-B Evidence Act) of the electronic record (paper printouts comprising Call Detail Records – secondary evidence of their contents) dealt with the mode of proof, such an objection could not be entertained at the appellate stage, if the same was not raised at the time when the electronic record was submitted in evidence at the stage of trial. This is because had an objection been raised at the trial stage, that would have presented an opportunity to the prosecution to cure the defect as to the admissibility at that stage itself. Since no occasion would be available to cure the defect at the appellate stage, it would be unfair to the prosecution if the evidence on record at the time of trial and not objected to then, was omitted from being considered at the appellate stage.
The ruling in Anvar cannot be interpreted to mean that absence of certificate under Section 65-B renders secondary evidence of electronic record inherently inadmissible
From a close reading of Venkatachala and Sonu, it appears that the question of inherent admissibility concerns the nature of the evidence (electronic record) and is separate from the question in what way this evidence may be made admissible in court (as either primary or secondary evidence). So the question that whether printouts comprising Call Detail Records (electronic record in Sonu) or a CD with recorded files (electronic record in Anvar), is something that can be admitted in evidence, decides the inherent admissibility of such CDR or CD. Anvar does not deal with this question, but addresses whether these electronic records can be read in evidence without a certificate under Section 65-B of the Evidence Act. Anvar, as correctly pointed out by this blog, unequivocally answers this question in the negative.
The holding that this is the only manner in which an electronic record by way of secondary evidence may be read in evidence cannot be interpreted as a comment on the nature or inherent admissibility of the electronic record. While a certificate under Section 65-B certainly has a bearing on the authenticity of the electronic record, it does not in any manner, alter or affect the contents of such CD or CDR. Whether or not a certificate under Section 65-B is supplied, the nature of the CD or the CDR remains unchanged. The question of how you establish its authenticity is different – and while State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru [(2005) 11 SCC 600] provided the option of establishing authenticity with or without a certificate, Anvar held that authenticity can be established only through certification under Section 65-B. This question of establishing the authenticity relates to the mode of proof, the only issue discussed in Anvar. Therefore, contrary to what was argued by this blog, I submit the judgment in Anvar does not deliberate on the issue of inherent admissibility or the nature of an electronic record.
I must also counter a possible response. An argument may be made that since Section 65-B is a deeming provision, an electronic record can be deemed to be a document only if conditions under Section 65-B are satisfied. If the electronic record fails to meet these conditions, it does not qualify as a document and hence becomes inherently inadmissible in evidence. However, as was held in Anvar itself, the deeming of an electronic record as a document depends only on conditions under Section 65-B(2) and not on the certificate under Section 65-B(4). It must be noted here that conditions under Section 65-B(2) relate to the circumstances of the ‘computer’ and the manner of production of the ‘electronic record’ by such ‘computer’. If these circumstances and manner of production exist, then only the electronic record can be deemed to be a document as per Anvar. Now, the question of inherent admissibility of the electronic record would depend on the existence of these circumstances, and not on the manner in which they can be proved before the Court. Even if the only manner in which they can be proved to exist is through a certificate, as was probably held by Anvar, their existence itself determines the inherent admissibility of the record and not the manner in which their existence is proved. It must also be noted that Anvar nowhere expressly observes that an electronic record cannot be deemed to be a document absent a certificate under Section 65-B.
Sonu applies Anvar retrospectively and decides a different issue that the one determined by Anvar
Sonu recognises that since the law laid down by Anvar applies retrospectively, requirement of a certificate under Section 65-B was necessary to make secondary evidence of electronic records admissible – and that must be deemed to have been the position of law from the introduction of Section 65-B in the Evidence Act. Since this was the position of law, the objection as to admissibility (failure to submit certificate under Section 65-B) should have been raised at the stage of tendering of evidence. Since the objection had not been raised during trial at the stage of evidence, it could not be entertained at the appellate stage.
So basically, the Court is telling the accused/appellant that – we agree that the position of law is what Anvar held, and so you ought to have argued it at the time when evidence was being lead during trial, and you cannot argue it now, at the appellate stage if you didn’t raise the argument during trial. Hence, the Court in Sonu in fact realises it was bound by in Anvar and reaffirms it.
In Anvar, there is no doubt that the plea of non-admissibility of electronic record has been accepted by the Supreme Court at the appellate stage. It is crucial here to note that the reasoning of Sonu does not preclude the Court from entertaining objection as to admissibility of the electronic record at the appellate stage, but it bars the defence from raising that objection at the appellate stage when this was not taken at the time of tendering of evidence. Now, this would be a legitimate course of action available to the Bench in Sonu if it can be established that Anvar did not consider the issue determined by Sonu, which is - whether a plea regarding non-admissibility of electronic records (due to absence of certification under 65-B) could be taken at the appellate stage if the same had not been raised when evidence was being tendered during the trial. A look at the High Court decision in the Anvar case (Election Petition No. 3 of 2011 in High Court of Kerala) shows that the plea regarding non-admissibility of CD’s was raised by the petitioner even in the High Court.
Sonu also notes that Venkatchala was a civil case, and also places reliance on the three-judge bench decision in PC Purshothama Reddiar v. S. Perumal [(1972) 1 SCC 9, 'Reddiar'] which pertained to admissibility of police reports in a criminal trial. The defence in Reddiar had objected to the admissibility of police reports (marked in evidence without any objection during trial stage) on the ground that the police officials who had covered those meetings had not been examined. The Court held it was not open to the accused to raise an objection about the admissibility of the police reports when no such objection was taken at the time when evidence was being lead during trial. While Reddiar did not make a distinction between inherent admissibility and mode of proof, it is clear that the Court was unwilling to entertain objections pertaining to admissibility when they had not been raised during trial. Hence, it was legitimate for Sonu to decide an issue which was not considered in Anvar and the determination of which is in consonance with a bench co-ordinate to Anvar.
As has been correctly identified on this blog, Sonu is concerned that retrospective application of Anvar is ‘not in the interests of administration of justice’ for a large number of criminal cases that have already become ‘final’. However, I disagree that Sonu was a misstep, and submit it stands on firm legal footing.
 The argument in the High Court was that since the CD’s were secondary evidence of the content of the recordings contained therein and since primary evidence of this content (recordings created and stored on mobile phones, digital camera or the computers to which they were transferred) was not submitted in court, the secondary evidence (CD’s) was not admissible since it could not be relied upon as an authentic source.