Thursday, July 20, 2017

Supreme Court on Electronic Evidence - Sonu v. State of Haryana

On 18 July 2017, two judges of the Supreme Court dismissed three appeals [Crl. Appeal Nos. 1416 of 2013, 1652 of 2014, and 1653 of 2014] in the decision reported as Sonu @ Amar v. State of Haryana. The Appellants had been found guilty in 2010 of abduction and murder, and had been sentenced to life imprisonment which had been upheld by the High Court. One of the main grounds for these appeals was lack of any certification under Section 65-B of the Indian Evidence Act 1872 [Evidence Act] for electronic records that had been relied upon in evidence. This was the Call Detail Records [CDR] that the police had collected during investigation. Crucially, the Supreme Court has held in this pernicious decision that a CDR, without any Section 65-B certification, could be relied upon to support the conviction.   

Recap - 65-B, Anvar Basheer, and Certificates for Electronic Records
This Blog has discussed the law on electronic evidence in some detail, specifically the changes in law that were brought about by the decision in Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473], delivered by a bench of three judges. That decision held that for any electronic record of a secondary nature - such as the printed pages comprising a CDR - to be considered admissible in evidence, it must carry certification as prescribed by Section 65-B(4) of the Evidence Act. Therefore, since 2014, the issue of certification has been relevant for all pending cases - both trials and appeals. 

Many coffee table conversations discuss how India has a low conviction rate and people go scot-free on technical grounds. Now imagine if I told you, that serious offenders are winning appeals arguing that evidence in their trial (which concluded ten years ago) is inadmissible because of what the law says today because of what a case has held. Would you think that, well alright, rules of interpretation suggest that evidence laws will have retrospective application and so it is only fair? Or, will you baulk at the idea and decry it as a failure of justice? The odds of the latter are higher, and this led to different courts carving out bits from the ruling in Anvar. Most notably, it was done by a bench of two judges of the Delhi High Court in 2015 where they interpreted Anvar to mean that certificates need not be contemporaneous but can come in later, as long as a certificate came and was proper. Incidentally, that decision also dealt with CDRs and murder charges.

Sonu v. Haryana - A Clear Misstep
The Supreme Court had unequivocally upheld Anvar. Until now, when a bench of lesser strength in Sonu v. State of Haryana went ahead and relied exactly upon these concerns to deny the Appellants from raising the issue of the CDR not carrying a certificate under Section 65-B. The problem with the decision is simple. It is concerned by application of Anvar to pending appeals but at the same time it acknowledges that nowhere did the three judges in Anvar expressly say the ruling would only apply prospectively. The judges in Sonu go so far as to recommend that a proper bench ought to consider this in the future. But then, despite knowing that their hands are tied, the two judges proceeded to dismiss the appeals by refusing to apply the law in Anvar

The bench attempts to obfuscate this by engaging with a technical issue of how inadmissibility of evidence ought to be taken up during the appeals stage. There is a discussion about whether a CDR is a document inherently inadmissible in evidence, which the Court says it is not. The issue of certification for electronic records under Section 65-B is termed as an issue of the 'mode of proof', a procedural tic that the Appellants were required to flag during the trial itself, which they did not. Too bad, the Court says, and holds that they could not be permitted to do so now, when the final appeals were being heard. 

Who are we fooling here? The three judges in Anvar in no uncertain terms held that the certification under Section 65-B went to the heart of the matter and prescribed it as the only mode of proof for such materials. Without a certificate this evidence was rendered inherently inadmissible. To conclude otherwise is a glaring error. In thinking that the Appellants chose not to raise this issue during trial, the judges here make another obvious misstep. The grounds for the Section 65-B admissibility issue here only arose were going to the Supreme Court, because Anvar changed the law in 2014. 

Conclusion - Two Wrongs Don't Make a Right
The presence of that last part in Sonu v. Haryana where the Court calls for prospectively applying the decision in Anvar shows that the judges were aware of the problem and are concerned. Do I think that the decision in Anvar ought to have been made prospectively applicable in 2014? Yes. This Blog in 2014 had termed the application of Anvar to pending cases as unfair. But neither Parliament, nor the Supreme Court itself, decided to intervene and change this position. Today, by prejudicing Appellants for simply making the mistake of relying upon the position of the law that the Supreme Court gave us, only compounds the error. Not only immediately for the Appellants in Sonu, but for all the other pending trials and appeals across the country that will now certainly be affected and delayed because of these observations. The future does not look bright.

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