(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.[1]
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.
[1] 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.
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