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.

The Supreme Court, 65-B Certificates, and Electronic Evidence

A Three Justices' Bench of the Supreme Court delivered a much-awaited decision in Arjun Panditrao Khotkar v. Kailash Kushanrao & Ors. [Civil Appeal Nos. 20825-26 of 2017, decided on 14.07.2020 ("Arjun Panditrao")]. The issue referred to the Three Justices was an apparent conflict that had emerged in the position of law on the point of Section 65-B of the Indian Evidence Act, 1872 [IEA]: It appeared that the legal position, as expressed by a bench of Three Justices in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473 ("Anvar")], had been changed by a bench of Two Justices in Shafhi Mohammad v. State of H.P. [(2018) 2 SCC 801 ("Shafhi Mohd.")]. 

[For a background into the issues, see this post, and for various posts on Anvar, see here]  

The Holding in the Reference

The order of 26.07.2019 making the reference was as follows:   

We are of the considered opinion that in view of Anvar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad (supra) needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter.

The reference itself has now been decided by a unanimous verdict (Justice Ramasubramanian has penned a separate opinion; more on that later), which I understood as holding that:

1. Anvar continues to be the correct position of law and the observations in Shafhi Mohd., and some other decisions, have been declared per incuriam. 
2. Thus, admissibility procedures set out in Sections 65-A and 65-B, IEA control the field completely when it comes to electronic evidence, and the regular procedures of Sections 62 to 65, IEA do not apply. 
3. It is mandatory to file a certificate as per Section 65-B(4), IEA in all cases where a person cannot bring the computer device upon which "original information" is stored to court. 
4. The person giving a certificate need only be able to attest to the requirements of Section 65-B, IEA to the best of her knowledge and belief.
5. Where a party cannot produce the certificate, she must file an application before the court to direct the concerned persons to furnish the certificate as under Section 65-B(4). This process seems to be located during the trial itself when evidence is recorded. 
6. Only where a certificate is not forthcoming despite these directions can the requirement be waived. 
7. Section 65-B, IEA does not speak of the stage at which the certificate must come in. Anvar's view that the certificate must accompany the material when adduced in evidence is correct, but only in the cases where a party can produce a certificate. In other cases, the court conducting the trial must take steps to get the certificate by issuing necessary directions.
8. In criminal cases, the certificate should ordinarily be filed at the outset to enable full disclosure. At the same time, it is open for a court to allow the certificate to be filed later during the trial if there are good reasons explaining the failure to file the certificate at the outset.  
9. For data in the nature of call records that has been seized during an investigation, ISP’s and other service providers must store that data for a period longer than 1 year and do so in a “secure” manner.

[Based on Paras 30—63 and 72 of the judgment]

Three Points of Critique

There is a lot to unpack in the decision and the separate opinion which suggests that perhaps it is time to reconsider Section 65-B, IEA as a whole. Rather than enter a longwinded discussion with lengthy excerpts (and subject myself to the fallacy of the decision itself, which is bloated with copious extracts), below are some points of critique:

• Two wrongs don't make a right (yet again): Anvar had made a mess of Section 65-B, IEA by making a certificate mandatory when it was never the case as per the statute, and Arjun Panditrao has gone ahead and repeated that error with aplomb. On both occasions, the Supreme Court has conflated the mandatory nature of Section 65-B, IEA for the specific kinds of material it covers, with the separate issue of how the conditions in that provision be established by a party during trial. The text of Section 65-B, IEA, principles of evidence which support ease of admissibility, and just plain logic, all support a reading that a party has the option to either have a witness come in or to furnish a certificate. In Arjun Panditrao, the Court has not confronted the clear leaps in Anvar which had led that decision to introduce the need for mandatory certificates, and has thus assured that Indian law retains its position of being a discordant exception to global best practices when it comes to the admissibility of electronic evidence [A point hammered home nicely by the Separate Opinion].
• Peculiar Add-Ons to the Anvar Regime: As referred to above, the reference in Arjun Panditrao was the result of apparent conflicts between Shafhi Mohd. and Anvar. In my view, it would be a stretch to say there was a "conflict" — Shafhi Mohd. had filled in a gap that existed within the Anvar regime by fairly suggesting that mandatorily requiring parties to furnish certificates might adversely affect the cause of justice. Arjun Panditrao has actually upheld this kernel of truth, but rather than adopt the "interests of justice" formulation of Shafhi Mohd. what we have now is a higher yardstick and parties have to file applications for courts to compel production of certificates, which the court will consider during the trial [Para 50]. Is that really a better answer to the issue though? Consider the costs of this approach — 
• The Court has now made the entire trial setup slightly bizarre. If I don't have a certificate for the material, I can still bring it to court. But what next? I file applications seeking directions against the concerned person to file the certificate. But what about the progress of the trial? Do courts "mark" and not "exhibit" the material and continue the trial, or do they stop and get this issue sorted first? Will that not be in the teeth of an earlier Supreme Court verdict which had recommended deciding all objections during the evidence stage at the end of the process in a bid to save time? Further, what if I do not know who the concerned person ought to be, or what if the person comes ahead and disputes the factual basis (as an adverse party might very well do)? Does the court then enter into a mini-trial on the application? Either way, there is bound to be greater delay in the process as all these applications necessarily take time; 
• The Court has suggested that the deficiency of a certificate can be rectified by making proper applications before court. But, the Court puts the cart before the horse here, because it does not consider just what is the nature of the failure to tender a certificate. If Section 65-B, IEA compliance is a mode of proof issue — as was held in Sonu v. Haryana — then it means that courts should not exclude material on this ground unless that objection is raised by a party. If so, then isn't the entire mandatory nature of the certificate requirement a little bit of a hollow promise?  
• A Worrying Blind Spot in the Criminal Process: Arjun Panditrao helpfully notices the different kind of pressures in a criminal trial and the necessity of securing a fair trial for an accused. Towards this, the Court recommends that a certificate be filed at the outset, so that it can be shared at the stage of disclosure [Section 207 Cr.P.C.]. All this is great, till you stop to think: Wait, what happens if it's a complaint case? These constitute a big chunk of criminal prosecutions, and more importantly, complaint cases are the ones where issues about a lack of certificate can arise rather frequently. On law as well, it is not a clear position that Section 207 applies in this context, and so we are left in a strange lurch where it becomes unclear at what stage certificates must be placed on record. 

Conclusion — Frustrating Justice

A reference was made to clarify the law on Section 65-B, IEA. Arjun Panditrao answers this by telling us that Anvar is the correct position insofar as the certificate requirement is still mandatory. But that is the limited extent to which any clarity has been offered. There were many other legal issues that had arisen in the years since Anvar that required clarity, chief among them being the observations made in Sonu about the nature of any 65-B, IEA objections. But the Court has turned a Nelson's eye to these issues. Instead, what the Court has done is to leave its mandate to clarify the law and step into suggesting the practical ways in which the certificate requirement is given effect. It would appear that the Court chose to make further changes without fully appreciating the nuances of the existing architecture, where many of the "nuances" are the result of similar forays by this Court in the past. What is left behind is the wasteland of criminal procedure, which someday a different bench of Justices will hold responsible for delaying the delivery of justice itself.    

[This post was edited on July 16 to insert point 9 in the section on the holding.] 

Electronic Evidence: A Way Forward

Court cases, whether civil or criminal, are how we ask the legal system to decide contested questions of fact. Both sides give their versions of what happened by leading evidence of the many details that made up the event. Witnesses are called, documents and other materials filed, all to show that one version was more probable. A court then examines these materials to decide which version of events was probably (or most possibly) true. 

As trials are attempts at recreating what people did, it is natural to imagine that a major way of doing this is through mobile phones, computers, and social media. Not only do many of us create an almost contemporary record of their daily life on Facebook etc., but cellphones are also sophisticated tracking devices that can help locate where someone was on any given day. At the same time, the likelihood of fake accounts and tampering with this material is also quite high, making it difficult to believe all that we do end up seeing.

This throws up the following dilemma: Should it be easy for this material to come before court with no pre-emptive checks against tampering, giving the court full discretion on how it is considered? Or, do we want to have some questions that a court must ask when deciding whether to let such evidence come on record? In legal terms, the dilemma is about whether admissibility requirements for such electronic evidence should be relaxed or strict. 

In this post, I explain the evolution of law on this point, which shows that barring a brief decade between 2005 to 2014, the Supreme Court approved of strict admissibility requirements for electronic evidence. I argue that this approach was guided by a fear of the unknown when it came to technology, and ended up conflating issues of admissibility with those of a material's reliability. After 2014 though, courts have marked a silent retreat from this strict position, and in 2018 the Supreme Court suggested a return to the relaxed approach of 2005. The result of this back-and-forth is that trial courts across the country are uncertain about  what the law is, increasing the potential for manifest arbitrariness in how cases are processed. I offer my (utopian) take on how to solve this confusion, and conclude by urging for a speedy resolution of the present uncertainty to prevent costly failures of justice. 

Admissibility v. Reliability: The Judicial History of Electronic Evidence

Election cases have had a disproportionately large footprint in the judicial history of electronic evidence. In most of these, candidates had made recordings of their competitors violating election laws, and sought to use this recording as evidence in Court. How these cases were handled by the Supreme Court was the subject of a four-part series on the Blog, and I need not address that in much detail here. It suffices to say that while the Court often spoke about admissibility in those decisions, it paid lip-service to the statutory rules on the issue. Instead, the Court created new conditions beyond the text, which were concerned with the reliability of recordings and sought to exclude material that did not satisfy a minimum threshold of genuineness:

(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. 

(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. 

(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. 

(4) The statement must be relevant according to the rules of Evidence Act. 

(5) The recorded cassette must be carefully sealed and kept in safe or official custody. 

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

[Taken from Ram Singh v. Col. Ram Singh, 1985 (Supp) SCC 611]

A look at this test shows how the Court conflated issues of a material's admissibility with those of its reliability. Conditions on admissibility decide whether or not a court can look at material. Questions of reliability comes after the material is already before court, and affects how much weight can be placed on it. But since the decisions consistently referred to admissibility, it must be assumed that the idea was to create additional requirements to tighten statutory rules on admissibility, which were perceived as insufficient, with non-compliance warranting exclusion of the inadmissible material. 

The judiciary's multi-factor test arose at a time when Section 65-B did not exist in the Indian Evidence Act 1872. This provision, along with Section 65-A, was inserted in 2000, and provided a new procedure for admitting electronic evidence in court and address that judicial concern with a laxity on admissibility requirements in the statute. The new procedure did not differ much from the old — get originals if you can, but we will accept copies if that isn’t possible — but made some important tweaks. As Section 65-B(2) shows, the statute now carried specific checks at the stage of admissibility similar to the judicially created multi-factor test referred to above: 

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :- 

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

..... 

Electronic Evidence: Anvar and the Strict Approach

Thus, the text of Section 65-B suggested that the legislature had introduced conditions in the statute that confirmed the judicially created tests that had emerged to regulate admissibility of electronic evidence. Crucially, though, when Section 65-B came before the Supreme Court for the first time in Navjot Sandhu [(2005) 11 SCC 600], it held that the provision had done no such thing. Rather, it held that Section 65-B was only one method for admission of evidence, which meant that the pre-emptive checks it provided were not mandatory. This was a clear indicator that the Supreme Court favoured a relaxed approach to allow relevant evidence and let the judge deal with it, rather than exclude it as inadmissible altogether. 

In 2014, the Supreme Court opted for a strict approach on accepting electronic evidence through a  decision by a Three Justices' Bench in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473]. Anvar was also a case of alleged election malpractice, and the Court was asked to decide whether the material basis for the allegations — A/V recordings on a CD — was admissible or not. Despite these similarities with the old cases on tape-recorded evidence, Anvar did not simply apply those tests and decide the case. Instead, it correctly looked at the material from the prism of Section 65-B of the Evidence Act, and held that if parties were not getting originals then all copies must comply with the conditions of Section 65-B to be admissible. 

Bringing originals is not difficult with recordings, as all you need to do is get the original memory card etc. which was used in the recording device, along with the device itself. But with messages, emails, call records and the like, the originals are not in any person’s possession, but on the servers of corporations such as Google, Amazon or Airtel. Thus, for a vast chunk of electronic evidence, courts can only ever deal with copies. And in Anvar the Supreme Court held that to even look at any of this, Section 65-B had to be complied with, where compliance meant filing a contemporaneous certificate as provided under Section 65-B(4) (filed when the evidence comes to court). 

Anvar affirmed the strict approach on admissibility and overruled Navjot Sandhu in the process. In doing so, it harmonised the old cases on tape-recorded evidence with the new statutory provisions in Section 65-B. At the same time, it also prescribed a very harsh medicine for non-compliance with the law: excluding potentially relevant evidence from consideration. 

The Silent Retreat After Anvar

Anvar was flawed. Not because it held that Section 65-B is a mandatory requirement for accepting copies of electronic evidence, but because it held that a contemporary 65-B certificate is mandatory. This is plainly unsupported by the provision, which only provides for the certificate method as an option for convenience. 

Further, Anvar was also flawed insofar as the holding was allowed to apply retrospectively to pending cases and appeals, something that consequently placed all pending litigation in the country in a flux. If electronic evidence had been taken on record contrary to the single method that Anvar now prescribed, it had to go away. And since the method in Anvar made it impossible to cure defects — it needed a contemporary certificate — it meant many cases would fall to the floor. 

The initial chiseling of Anvar began with this perspective: courts read the judgment in ways to make the conditions more palatable so as to not imperil pending cases, but did not disagree with the view that Section 65-B was mandatory. A leading example of such an attempt was the Delhi High Court decision in Kundan Singh [Crl. Appeal 711/2014 decided on 24.11.2015], which enlarged the scope to cure defects by holding that Anvar did not require a contemporary certificate under Section 65-B to be filed. 

This chiseling continued with Sonu v. Haryana [(2017) 8 SCC 570]. Here, a Two Justices' Bench of the Supreme Court developed a different line to allow for curing the procedural defects that might result from Anvar. Focusing on the distinction between issues of "inherent admissibility" and "mode of proof", it held that non-compliance with Section 65-B was an issue that affected the latter. This required parties to raise this objection at the time of trial, and barred them from raising it in appeal. Effectively, it meant that the Court had shielded trial court verdicts from a retrospective application of Anvar, something it specifically flagged as a concern.

And in 2018, this chiseling fashioned a different artwork altogether when another Two Justices' Bench decided to take up many evidentiary issues in the case of Shafhi Mohammad [(2018) 2 SCC 801]. The case did not involve any questions on Section 65-B, but that did not stop the Court from "clarifying" the legal position on the same. It did so in two remarkable ways: first, it suggested that Sections 65-A and 65-B were not a complete code on the subject of electronic evidence, and second, it held that courts can relax the requirement of a certificate in the interests of justice as these are procedural provisions.

Working Towards Untangling the Knots

The chiseling, or wrecking, of the house built by Anvar in 2014 has been done either by High Courts, or by Supreme Court decisions passed by benches of lesser strength. This repeated clarification of the law by different courts is not an exercise in distilling the essence of a substance by repeated filtering. It is actually the opposite: a process which throws millions of pending into a violent churning, with the trial courts not knowing how to handle the material presented before them. 

How do we resolve this confusion over what shape should the law take? There are many answers to this. One of these is a clarification of Anvar to state that a contemporary certificate under Section 65-B is not required, and limiting the retrospective effect of that decision to save decided cases. This would address the most visible of sores. But it will not solve the problem itself. For that, we must repeal Section 65-B of the Evidence Act and bring in its place a new setup to untangle the nexus between admissibility and reliability that has contributed to the present state of affairs.

The judiciary's approach to focus on the accuracy of electronic evidence at admissibility itself worked at a time when such material was a rare oddity in trials. It was, as I have argued earlier, symptomatic of worries about misuse of unfamiliar technology that plague us all. Given the rarity of this material, as well its unfamiliarity, it makes sense that a system potentially excluding this evidence at the outset was not seen as problematic. Section 65-B reflects this reality — the product of a legislation that went through its gestation in the 1990s. However, the landscape has changed so dramatically in the last two decades that both aspects of rarity and unfamiliarity in relation to electronic evidence have almost completely disappeared.

This transformation makes a legal system which possibly excludes this material as evidence appear quite unfavourable and out of sync with common sense, and explains the retreat from Anvar. It also warrants that the system give up this approach which considers issues of accuracy and reliability at the stage of admissibility itself and ousts relevant material. This ultimately increases the already existing gap between judicial verdicts and the truth as parties might perceive it. Instead, it makes sense to revert back to the standard method for accepting evidence, found in Sections 60 to 65 of the Evidence Act. In this model, admissibility is concerned about the provenance of the material, with a preference for getting originals with the law allowing copies if the circumstances require. But the concerns over accuracy and reliability, which are at the heart of Section 65-B(2), would still be left for courts to consider when evidence is being appreciated and arguments being heard. 

Conclusion
The Indian Parliament took great inspiration from Section 5 of the U.K. Civil Evidence Act of 1968 while drafting Section 65-B: both provisions were almost identical. I use the past tense because the U.K. provision has since been repealed, with that jurisdiction adopting a relaxed approach on the point of admissibility. Here, I suggest that India should follow suit, and consign Section 65-B of the Evidence to the realm of history.

The chances of that are not very high, which is why the impetus then shifts to the judiciary bringing about changes to Anvar for making it more palatable — a petition seeking clarifications is presently pending. Even so, I would suggest that a return to the 2005 position in Navjot Sandhu should also be considered, which suggested that Section 65-B cannot be treated as the only method for accepting electronic evidence. 

Whatever way the cards fall, clarity is urgently needed. I exaggerate, but the multiplicity of judicial opinions from high above in the wake of Anvar has perpetuated a situation where nobody on the ground knows what the law is with any certainty. Rather than more episodes such as Shafhi Mohd., a decision which changes the law on electronic evidence in a case which had nothing to do with it, what we need is a firm resolution to prevent the arbitrariness from causing more failures of justice.  

Guest Post: In Defence of Sonu v State of Haryana

(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.    

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[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.

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.

Electronic Evidence and the Commercial Courts Act 2015

Electronic evidence and Sections 65-A and 65-B of the Indian Evidence Act 1872 [Evidence Act] were the subject of a four-part series on the Blog (see, here, for the first of these). I try and follow up on developments in the law to discuss them here and was pleasantly surprised when I stumbled upon an interesting anomaly that has crept in today, which I discuss here.

Section 65-B Certificates 

Recall, that Sections 65-A and 65-B of the Evidence Act provide a special procedure for determining the admissibility of secondary electronic evidence in proceedings. These were inserted in the Evidence Act through the Information Technology Act 2000.  Section 65-B postulates that in order to treat the electronic material as evidence, certain preliminary issues need to be resolved. Such as, authenticity of the data-source, proper functioning of data-extraction methods etc. The provision allowed for this information to be furnished via a Certificate. It does not require that the Certificate be accompanied by an affidavit, since it is regular for the person making the certificate to be examined as a witness during the proceedings.

The Supreme Court in 2014 through the decision in Anvar PV v PK Basheer [(2014) 10 SCC 473] held that a Section 65-B Certificate was mandatory to prove electronic material. While I continue to stick by my argument that the decision is patently incorrect, that discussion is now purely academic since the decision has quickly been adopted into the processes of law. Today, then, electronic material such as emails is filed along with a Certificate under Section 65-B, where the maker of that material certifies its correctness etc. This Certificate does not contain an affidavit. It is exhibited in evidence, and the maker regularly questioned.    

Commercial Courts Act, 2015

Enter the Commercial Courts Act, 2015 [CCA]. This was the direct result of the Report No. 253 of the Law Commission of India and was announced to some fanfare. The CCA received Presidential Assent on 31.12.2015, but has been made retrospectively operative since 23.10.2015. This Act creates a special procedure for cases involving a 'commercial dispute' [Section 2(c)] that are above a specified monetary value that each State must fix [Section 6]. Rather than create a new procedure, the Legislature, through the CCA, made wholesale amendments to the Civil Procedure Code 1908 [CPC] for cases involving commercial disputes. We are concerned with the amendments to Order XI CPC, pertaining to disclosure, discovery and inspection of documents. 

The new procedure created by the CCA requires a Declaration on Oath by the plaintiff that "all documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings initiated by him have been disclosed ... and that the plaintiff does not have any other documents in his power, possession, control or custody." [Order XI, Rule 1(3)]. The Law Commission Report referred to above cited improvements in the procedural law on the point of disclosure, and I guess this is what they went for. However, I found no discussion at all for the new Rule 6 in Order XI, which deals with Electronic Evidence and has been extracted in full below:

(1) In case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000), furnishing of printouts shall be sufficient compliance of the above provisions. 
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts. 
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify

(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, details of ownership, custody and access to such email ids;
(f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent’s knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource. 

(4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is made by such party that each such copy, which has been produced, has been made from the original electronic record. 
(5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings. 
(6) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electronic record.

Does Rule 6 render 65-B Certificates Redundant for the CCA? 

The Declaration on Oath (i.e. a statement on affidavit) must contain all the information mentioned in Rule 6(3) for it to be accepted. While this may seem to be invoking the spirit of Section 65-B, it makes no mention of the provision whatsoever. It would be interesting, then, to compare Rule 6(3) with the requirements specified by Section 65-B that are found in the Certificate. It becomes clear that the procedure under the CCA is more exacting than the ordinary procedure under Section 65-B. Not only does the Section 65-B Certificate warrant lesser information, but it is also not on oath. 

So does Rule 6(3) render it absolutely redundant to secure a separate Certificate under Section 65-B for cases under the CCA? To my mind it does, and the CCA allows for this kind of an override  as well [Section 21]. I am told however that Section 65-B Certificates are still filed in cases before Commercial Courts together with this information that the new Rule 6 requires. That this is creating confusion is made apparent upon reading the order of a Single Judge of the Delhi High Court in Eli Lilly [CS (Comm) 1472/2016, order dated 09.11.2016]. Repeatedly, an affidavit under Section 65-B is referred to, or the certificate is constantly treated as being an alternative word for affidavit: "counsel for the plaintiff states that such a certificate/affidavit was not filed ... Such certificate/affidavit under Section 65-B" and so on. 

Endlaw, J. in passing refers to how the claims of the counsel ignored clear precedent perhaps because it pertained to criminal cases without considering that the Evidence Act applies to both civil and criminal proceedings equally (referring to the Division Bench decision of the Delhi High Court in Kundan Singh). I think he may be on to something bigger. It is no coincidence that the Evidence Act has rarely been amended through the vehicle of procedural law through time. Legislatures have been careful to maintain the equal treatment it metes out to both civil and criminal proceedings in the context of questions of admissibility and proof. So, while the standard of proof might have been different in civil and criminal cases (balance of probabilities versus proof beyond reasonable doubt), the Evidence Act ensured that how documents and material became evidence was common unless mentioned otherwise. The CCA has ignored that precept, and has created a situation where commercial cases are being subjected to stricter rules of proof than other cases. It would be ideal for this to be addressed by a bench of higher strength, or the Supreme Court, to put the confusion to rest before any egregious consequences ensue.

(hat tip to Suveni Bhagat, Viraj Parikh, and Aditya Vikram Singh)