Guest Post: Section 65-B Certificates — Confusions Created, and Compounded, by Courts

(This is a guest post by Anushka Kanabar)

In 2020, a 3-judge bench of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal settled a conflict with regards to the application of Section 65-B of the Indian Evidence Act. It upheld the 2014 decision in Anvar P.V. v. P.K. Basheer, which laid down that a certificate complying with Section 65-B is a mandatory requirement, and that electronic evidence tendered without it is inadmissible.

Despite this, the Supreme Court decided Sundar @ Sundarrajan v. State in 2023 and dismissed objections relating to the absence of such a certificate, relying on Sonu @ Amar v. State of Haryana (2017) for the proposition that such objections cannot be raised at the appellate stage if they were not raised at the trial stage. The problem with such reliance is not that the Court ignores the decision in Khotkar – rather, it side-steps it by saying that it did not deal with the questions of the retrospective applicability of the law laid down in Anvar, and whether objections relating to 65-B certificates can be raised at the appellate stage.

This is untrue, or at least immaterial, because Khotkar lays down in clear terms that the absence of a 65-B certificate renders secondary electronic evidence inadmissible. The Court did not have to discuss the applicability of Anvar by virtue of the fact that objections of inadmissibility – that arise because of the contravention of mandatory requirements – can be raised at any stage of the process. So, the position of law it stipulates is essentially the same as would result from it explicitly making Anvar retrospectively applicable. In proceeding on the line that the question of whether a 65-B certificate is mandatory is different from the question of whether an objection regarding it can be raised at the appellate stage, the Court in Sundar, in effect, ignores that Khotkar overrules Sonu by implication.

The reliance on Sonu for the proposition that Anvar is prospectively applicable is also questionable on the ground that the Court in that case could not have, and did not, prospectively overrule Anvar. Knowing that its hands as a division bench were tied, it left the question open for a larger bench to consider, after making some remarks about the necessity of doing so. If Khotkar indeed left a gap in the jurisprudence (which I argue it did not), the court in Sundar had the discretionary power to declare Anvar prospectively applicable, which it refused to do in clear terms – it “agreed with the ratio in Sonu” that Anvar is generally prospectively applicable, while exempting its own facts from its application (it being a death penalty review petition). Instead of independently considering whether the mandate of 65-B certificates should be made prospectively applicable, the Court in Sundar validated the dicta in Sonu, ignoring not only that the latter withheld a conclusion on the subject, but also that it proceeded on a now-erroneous line of reasoning (that 65-B certificates only concern the ‘mode of proof’ and do not strike at the heart of the admissibility of secondary electronic evidence).

The approval of the general rule in Sonu had no bearing on the ultimate holding in Sundar, because the Court, following Mohd. Arif v. State – another death penalty review petition – exercised its discretion to eschew the electronic evidence in contention on account of the change in law (though it was arguably distinguishable on facts from Sundar on account of the facts pertaining to the electronic evidence). Since the Courts in both these cases only eschew the evidence on discretionary grounds, upon a consideration of the nature of the penalty, they make themselves out to be exceptions to the otherwise problematic precedent they set for lower courts. The apprehension that this case can be cited as authority for the proposition that objections to the absence of 65-B certificates cannot be raised at the appellate stage is not without cause. Even without authority to this effect, the Madras and Calcutta High Courts have held that the dictum in Sonu is undisturbed by conclusions in Khotkar.

Thus, the Supreme Court’s espousal of such reasoning risks undoing the effect – and indeed the whole point – of a 3-judge bench decision clarifying that the absence of a 65-B certificate renders evidence inherently inadmissible. Moreover, by applying the idea of ‘waiving’ objections to the mode of proof, to inherently inadmissible evidence, it penalizes parties that were (due to the then-prevailing position of law) discouraged from raising objections in the first place.

A caveat regarding the status of Khotkar is in order, due to the introduction of the Bharatiya Sakshya Act. At this point, what we do not know about the new criminal codes and their application far overshadows  what we may know. But, what is clear in a sea of uncertainty, is that some kind of certification requirement has been retained in the new evidence law and therefore these conflicts are unlikely to dissipate.