A Division Bench of the Delhi High Court recently delivered a decision with big implications for the application of Section 65-B of the Indian Evidence Act 1872. Kundan Singh v. State [Crl. Appeal No. 711/2014 decided on 24.11.2015] was an appeal against a murder conviction which involved appreciating electronic evidence. Black bags with bodies were recovered, and a chain of events was recreated using electronic evidence, among other things, which linked the Appellant with the crime. The Appellant contended the Call Detail Records (CDRs) were incorrectly relied upon by the Trial Court as 65-B certificate was not contemporaneous to creation of the material. This contention prompted a thorough discussion of Section 65-B, which leads to this post.
Re-Understanding Section 65-B
The relevant part of the decision begins from Paragraph 30. Here, after copying the provisions, the Court makes an important observation of the intertwined nature of reliability and admissibility stages in Indian evidence law, and places Section 22-A [a provision making admissions about contents of electronic records relevant] in the reliability domain. But this is not why I describe the judgment as 're-understanding' Section 65-B. This is because the Court adopted a novel approach by looking at clause (5) of 65-B before turning to the crucial clause (4). The Court looks at clause 5 because "the said Section is relevant for interpreting sub-sections (1), (2) and (3)." It considered 65-B(5)(a) as creating a difference between processes automatically feeding data to computers as opposed to processes which require human intervention. Given the nature of data involved in the Appeal was a CDR, this distinction played an important part in the Court's conclusions of allowing the evidence.
After this we move to 65-B(4), and here again the Court goes ahead and re-writes the text of Section 65-B by authoritatively stating that "the certificate under sub-section (4) to Section 65B must state the following [emphasis supplied]." We find at Paragraph 38 the judges giving us four clearly laid out conditions inexactly mirroring those in Anvar. The gap widens further as the question of the certificate being issued simultaneously with production of the computer-output is taken up. The Division Bench found no such requirement in Anvar, which said "such a certificate must accompany the electronic record ... pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence." Determining this issue obviously turns on how one views the words 'produced in evidence'. The Division Bench understood 'production' to mean producing the electronic record for it to be marked in evidence, and not its mere filing in court as part of the record. So what this means is that the police don't need 65-B certificates when they file emails in a charge-sheet, but need to provide 65-B certificates when those emails are to be exhibited before court for them to be considered evidence. Therefore, certificates can also be produced while exercising powers under Sections 311 and 319, Cr.P.C. The only point where the Division Bench adopted Anvar was in its conclusion that the procedure under Sections 65-A and 65-B is special and should solely govern production of such material as evidence.
Separating Admissibility from Reliability
A part of the decision also considers the hearsay rule in the context of electronically generated material. The fact that CDRs were in question made the court distinguish between electronic records automatically created and those requiring human intervention (a distinction conveniently read into the statute as I observed above). If, then, someone not involved in the creation of that record comes to depose about it, would their testimony be hit by the hearsay rule? To answer this, the Court highlights the importance of making an assertion while considering hearsay objections. It is one thing to say that I heard X say Y murdered him. But me stating the CDR adduced is created from a bug-free device does not have the same bearing. Hearsay questions the authenticity of the evidence - the authenticity of a CDR really doesn't depend on what the manager says but on the computer processes. As Section 65-B raises questions of the accuracy of these processes, the Court cleverly uses this as a segue way to drive home the point that 65-B remains an issue of admissibility, not reliability. It stresses how compliance with Section 65-B is not the end of the picture; the reliability of the same is yet to be determined.
What to Make of this?
For one thing, it would be remarkable if this decision is not taken up to the Supreme Court given the stakes involved. As for the Court and its analysis, there appears a repetition of old faults. There is again a disregard for the statute. The interpretation of 65-B(5) seems clearly wrong to me, as the clause makes no allusion to differences between data automatically gathered and data fed by humans. Rather, it speaks of data being entered either directly into the computer or by way of another device (say a pen-drive), "with or without human intervention". This error may prove costly, as this difference of automatic vs. man-made data is pivotal to the conclusions arrived at. Here again I find no critical examination of whether 65-A and B exclude the other provisions altogether. One can perhaps wave this aside by virtue of Anvar controlling the field. It would have helped, though, if the Court followed the same ideas on what a 65-B certificate needs.
The Division Bench also disagreed with the idea that Anvar prescribed contemporaneous certificates although that understanding seemed most closely attuned to the judgment. I consider this disagreement, together with the general discussion on admissibility vs. reliability, very valuable and an attempt to steer the law back on course. The fact that Section 65-B was introduced to ease the process of introducing computer output as evidence seemed not lost on the Court, which sought to leave more touchy questions for the reliability stage. The treatment of CDRs and other data produced by automated processes as a separate class is in tune with the general aim of easing the use of such evidence in trials. [One may look at observations made by the UK Law Commission in 1993 on Hearsay in Civil Proceedings, where it considered the English equivalent of Section 65-B.] Perhaps most laudable is the attempt on part of the judges to reaffirm the lines drawn between separate phases of evidence during trial in a context [electronic evidence] where it seems those lines were drawn on sand. The hearsay discussion was important only for this purpose, and one hopes the Supreme Court soon adopts this position for it to get further legitimacy.
After this we move to 65-B(4), and here again the Court goes ahead and re-writes the text of Section 65-B by authoritatively stating that "the certificate under sub-section (4) to Section 65B must state the following [emphasis supplied]." We find at Paragraph 38 the judges giving us four clearly laid out conditions inexactly mirroring those in Anvar. The gap widens further as the question of the certificate being issued simultaneously with production of the computer-output is taken up. The Division Bench found no such requirement in Anvar, which said "such a certificate must accompany the electronic record ... pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence." Determining this issue obviously turns on how one views the words 'produced in evidence'. The Division Bench understood 'production' to mean producing the electronic record for it to be marked in evidence, and not its mere filing in court as part of the record. So what this means is that the police don't need 65-B certificates when they file emails in a charge-sheet, but need to provide 65-B certificates when those emails are to be exhibited before court for them to be considered evidence. Therefore, certificates can also be produced while exercising powers under Sections 311 and 319, Cr.P.C. The only point where the Division Bench adopted Anvar was in its conclusion that the procedure under Sections 65-A and 65-B is special and should solely govern production of such material as evidence.
Separating Admissibility from Reliability
A part of the decision also considers the hearsay rule in the context of electronically generated material. The fact that CDRs were in question made the court distinguish between electronic records automatically created and those requiring human intervention (a distinction conveniently read into the statute as I observed above). If, then, someone not involved in the creation of that record comes to depose about it, would their testimony be hit by the hearsay rule? To answer this, the Court highlights the importance of making an assertion while considering hearsay objections. It is one thing to say that I heard X say Y murdered him. But me stating the CDR adduced is created from a bug-free device does not have the same bearing. Hearsay questions the authenticity of the evidence - the authenticity of a CDR really doesn't depend on what the manager says but on the computer processes. As Section 65-B raises questions of the accuracy of these processes, the Court cleverly uses this as a segue way to drive home the point that 65-B remains an issue of admissibility, not reliability. It stresses how compliance with Section 65-B is not the end of the picture; the reliability of the same is yet to be determined.
What to Make of this?
For one thing, it would be remarkable if this decision is not taken up to the Supreme Court given the stakes involved. As for the Court and its analysis, there appears a repetition of old faults. There is again a disregard for the statute. The interpretation of 65-B(5) seems clearly wrong to me, as the clause makes no allusion to differences between data automatically gathered and data fed by humans. Rather, it speaks of data being entered either directly into the computer or by way of another device (say a pen-drive), "with or without human intervention". This error may prove costly, as this difference of automatic vs. man-made data is pivotal to the conclusions arrived at. Here again I find no critical examination of whether 65-A and B exclude the other provisions altogether. One can perhaps wave this aside by virtue of Anvar controlling the field. It would have helped, though, if the Court followed the same ideas on what a 65-B certificate needs.
The Division Bench also disagreed with the idea that Anvar prescribed contemporaneous certificates although that understanding seemed most closely attuned to the judgment. I consider this disagreement, together with the general discussion on admissibility vs. reliability, very valuable and an attempt to steer the law back on course. The fact that Section 65-B was introduced to ease the process of introducing computer output as evidence seemed not lost on the Court, which sought to leave more touchy questions for the reliability stage. The treatment of CDRs and other data produced by automated processes as a separate class is in tune with the general aim of easing the use of such evidence in trials. [One may look at observations made by the UK Law Commission in 1993 on Hearsay in Civil Proceedings, where it considered the English equivalent of Section 65-B.] Perhaps most laudable is the attempt on part of the judges to reaffirm the lines drawn between separate phases of evidence during trial in a context [electronic evidence] where it seems those lines were drawn on sand. The hearsay discussion was important only for this purpose, and one hopes the Supreme Court soon adopts this position for it to get further legitimacy.
Hi Sir,
ReplyDeleteKindly explain me how to give affidavit in case of own electronic devices like Mobile phones in which Whatsapp /Telegram Chat and Videos pertaining to the were discussed .
Hi
ReplyDeleteYou need not file an affidavit under 65-B (unless this is the Commercial Courts Act). The document needs to mention (i) the details of the messages / chat / video (ii) how have you filed a copy in court (iii) the device on which the originals stored (iv) that the device with the originals is used by you and is in your control and is not malfunctioning in any way (v) that the copy you have filed is an accurate representation of the original.