Justice Shivakant Prasad (Retd.), Former Judge, Calcutta High Court

Information Technology Act 2000 was enacted on 9th June 2000 in India which is an outcome of the Resolution dated 30th January 1997 of the General Assembly of the United Nations, which adopted the model law on electronic commerce and International Trade Law to which India is a signatory and has obligation to frame and enact laws to facilitate e-commerce and e-governance.

Now, it would be apt to understand the preamble of Information Technology Act 2000 enacted to provide the legal recognisation for transactions carried out by means of electronic data interchange and other means of electronic communications, commonly refer to as electronic commerce, which involve the use of alternatives to paper base method of communication and storage of information, to facilitate electronic filing of documents with the government agencies and further to amend the Indian Penal Code, Indian Evidence Act 1872, the Banker’s Book Evidence Act 1991 and the Reserve Bank of India Act 1934 and for matters connected therewith or incidental thereto, thus preamble itself reflects intention of the legislature and the primary object of the Act itself.

Technological development has converted paper transactions into paperless transactions. The increasing use of Information Technology has led to growth of new forms of trans national internet crimes. Crimes have virtually no boundaries and may affect any country across the globe. New standard of speed, efficacy and accuracy in communication which have become a source of innovations, creativity and increasing overall productivity and the computers are extensively used to store multiple data bringing immense benefits to the society. Computer based e-commerce and ecommunications over the world beyond the territorial boundaries have created a new realm of human activity beyond geographic boundaries. This new boundary less space is made up of screen and passwords, separating the cyber world from the real world. And the law making enforcing authorities find this new environment deeply threatening because of the cyber crime committed through internet which has necessitated the legislations called Information Technology Act 2000.

This article is confined to discussion relating to admissibility and appreciation of electronic evidence in a trial.

Electronic records play crucial role in criminal investigation and prosecutions. The contents of electronic records may be proved in accordance with provisions contained in Section 65B of the Evidence Act. Ref: Sonu v. State of Haryana reported in (2017) 8, SCC. 570.

The criminals are engaged in various operations including the banking fraud by use of the Internet and Computer. To keep pace with the situation, Information Technology Act 2000 and the rules framed thereunder are placed in use as the governing legislation.

Cyber crime is wide spread across the globe, as a person situated in India can very well be targeted by any person in other country of the world through the use of computer system and internet connection. The commonly cyber crime involving the use of internet and computer system are hacking, identity theft, freezing, scamming, ransom ware, theft, online fraud.

Evidence is defined and under section 3 of the Indian Evidence Act which means and includes: (a). All statements which the Court permits are required to be made before it by witnesses, in relation to matters of fact under enquiry; such statements are called oral evidence. (b). All documents in electronic records placed for the inspection of the court; such documents are called documentary evidence”. The evidence can be both oral and documentary and electronic records can be produced before the trial court. This means that the evidence even in criminal matters can also be proved by way of electronic records including video conferencing. Ref. State of Maharashtra v. Dr. Prafulla B. Desai.

In case of Amitabh Baghchi v. Ina Baghchi reported in AIR 2005 Cal 11, matrimonial suit was instituted by the husband against his wife. The husband, petitioner-made an application before the trial court for examining the witness by way of video conference as he was permanent resident of United States of America and it was extremely prejudicial for him to come to India and it would involve unnecessary amount of delay, expenditure, inconvenience. Calcutta High Court allowed the application of the husband for examining the witness by way of video conferencing being essential part of electronic method by placing reliance on two effective judgements viz State of Maharashtra v. Dr. Prafulla B. Desai and 20th Century Fox Film Corporation and Anr. v. NRI Film Production Associates (P) Ltd. The ratio of the Supreme Court judgement, is that presence does not necessarily mean actual physical presence before the court. It was observed that technology is definitely a tool. But the certain safeguards were required to be taken for purpose of recording evidence through audio video link.

In case reported in AIR 1968 Supreme Court 147, the Supreme Court of India held that conversation between accused and complainant tape recorded and the voices of complainant and accused being identified, the continuous dialogue between them was held form part of res gestae and was relevant under section 8 of Evidence Act and admissible under section 7. In this case the accused was not aware of the police officer or that his conversation was tape recorded where the mike was kept concealed in outer room and tape record in inner room. In this situation, it was held that conversation was not hit by Section 162 of C.R.P.C. and was admissible.

In Sanjay Singh Ram Rao Chawan v. Datatrey Gulab Rao Faoke and Ors. Decided on 16th January 2015, the allegation was for demand of money for grant of a certificate for non agricultural use of the land of the complainant. The conversation relating to demand of money amounting to ₹ 75,000/- as a bribe between the two was recorded by voice recorder, but since the Directorate of Forensic Science Laboratories reported that the conversation was not in audible condition and the same being not considered for spectrographic analysis, the Hon’ble court was of view that the voice recorder itself was not a subject to analysis, there was no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by Hon’ble Apex Court in Anwar PV v. P.K. Baser and Ors.

Ram Singh and Ors. v. Col. Ram Singh reported in 1985 S.C.C. 611(10) was a case relating to election trial. It was held that a tape recorded statement is admissible in evidence, subject to the conditions inter alia that the voice of the speaker must be identified by the maker of the record or other persons recognising the voice.

Full Bench of Supreme Court reported in AIR 1964 S.C. 72 held that tape record is not inadmissible mainly on the ground of possibility of being tampered with but court must be satisfied that the same is not tampered with.

Yet, in case reported in AIR 1982 S.C.1042 it was held that tape record as electronic evidence cannot be relied on but it can be for corroborative purposes.

In case of Vikram Singh alias Vicky Walia v. State of Punjab decided on 7th July 2017, the Hon’ble Supreme Court examined the review petition against the judgement of the criminal appeal affirming the death sentence awarded to the appellants for the charges under Section 302/364 A I.P.C. and the ground taken for review was that the tape recorded conversation was relied in the case without there being any certificate under section 65B of Evidence Act 1872. Argument on behalf of the appellant was that the audio tapes are recorded in magnatic media, the same could be established through a certificate under section 65B and in the absence of the certificate, the document which constitute electronic record cannot be deemed to be a valid evidence and has to be ignored from the consideration. The conversation on the land line phone of the complainant situate in a shop was recorded by the complainant. The same cassette containing conversation by which ransom call was made on the land line phone was handed over by the complainant in original to the police. In this set of fact, the Hon’ble court was of the view that the tape recorded conversation was not secondary evidence which required certificate under section 65B, since it was the original cassette by which ransom call was tape recorded, there cannot be any dispute that for admission of secondary evidence of electronic record a certificate as contemplated by section 65B is a mandatory condition. Ref: Anwar P.A. v. P.K. Basir and Ors. (2014) 10 S.C.C. 473.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors., qua the “substantial compliance” of the requirement of giving a certificate under Section 65B of the Evidence Act, the Supreme Court dealt with the relevant provisions of the Evidence Act and the Information Technology Act, 2000 and observed and held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied and further held that applicability of procedural requirement under Section 65-B(4) of the Evidence Act of  furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65- B(4) is not always mandatory and clarified the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies.

It was made clear that the major premise of Shafhi Mohammad that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect because an application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it. Resultantly, the judgment dated 03.04.2018 of a Division Bench of the Supreme Court reported as (2018) 5 SCC 311, in following the law incorrectly laid down in Shafhi Mohammed must also be overruled. Anwar P.V. partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in Navjot Sandhu holding that Section 65B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under Section 65B(4) is mandatory. Anwar P.V. does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under Section 311 Cr.P.C or, at the appellate stage under Section 391 Cr.P.C. Evidence Act is a procedural law and in view of the pronouncement in Anwar P.V. partly overruling Navjot Sandhu (supra), the prosecution may be entitled to invoke the aforementioned provisions, when justified and required.

Now, the judgement in Arjun Pandit is a landmark judgment related to the admissibility of electronic records as secondary evidence and the certificate requirement under Section 65B of the Indian Evidence Act, 1872.

In Anvar PV v. P K Basheer, the Apex Court held that an electronic record could be admissible as secondary evidence only if requirements under Section 65B are satisfied. Therefore, an electronic record that needs to be admitted as secondary evidence shall mandatorily accompany a certificate under Section 65B, without which it would be inadmissible. The certificate is required to ensure the source and authenticity of the electronic record as it is more prone to tampering, alteration, etc. but in Shafhi Mohammad v. State of H.P., the Supreme Court held that the requirement of a certificate under Section 65B is procedural and not mandatory if the electronic evidence was produced by a person not having possession of the device which generated the electronic document. The same was also relied in the Tomaso Bruno and Ram Singh case holding that if the procedure under Section 63 and 65 were not permitted to be invoked, it would be a denial of justice to the person who could not secure the certificate despite having authentic evidence and that the certificate requirement was not mandatory.

The aforesaid two decisions were referred to larger bench of the Hon’ble Apex court to dispel the ambiguity related to the certificate requirements under Section 65B of the Indian Evidence Act, 1872 for a certainty in law relating to admissibility of electronic evidence. is required.

The Hon,ble Apex court Court by majority decision concluded that (a) Anvar P.V. Case is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled. (b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).

The general directions issued in paragraph 62 of the decision to be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers. (d) Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption.

In case of Ravindra Singh v. State of Punjab decided on MAY 4, 2022, Apex Court held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as Anvar P.V. v. P.K. Basheer & Ors; [(2014) 10 SCC 473] occupies the filed in this area of law but case in Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 does not lay down the correct law.

In a latest decision dated November 6, 2023 in SLP (Cri ) 6548 of 2022 STATE OF KARNATAKA v. T. NASEER @ NASIR @ THANDIANTAVIDA NASEER @ UMARHAZI @ HAZI & ORS. Supreme Court while sitting in appeal, allowed prosecution applications under Section 311 of the Cr.P.C seeking recall of prosecution witness to produce a report and the certificate mandated under Section 65B of Indian Evidence Act related to electronic devises seized in 2008 Bangalore blast case by placing reliance on landmark judgements in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 and observed that fair trial in a criminal case does not mean that it should be fair to one of the parties, rather, the object is that no guilty should go scot-free and no innocent should be punished.

On respectful appraisal of the various decisions cited above, in particular, Anwar P V and in consideration of the principles laid therein, I conclude by saying that judgement dated 14/07/2020 in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [(2020) 7 SCC 1] is the gospel and Magna Carta, so far as the admissibility and appreciation of electronic evidence is concerned.

(Source: This article is published in souvenir of National Convention 2023 which was held on 23rd & 24th December 2023 at Kolkata)