The Recent Arjun Khotkar Verdict vis-à-vis a Revisit to Section 65B of the Indian Evidence Act – What’s all the fuss about?

By Shailja Mishra, Student, ICFAI Law School Hyderabad

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The long standing conundrum revolving around the varied interpretation of section 65(B) of Indian Evidence Act, 1872 has been simplified to some extent by the recent judgment of three judge bench of the apex court dated 14th July 2020 in Arjun Khotkar vs Kailash Gorantyal[1]. The judgment through a clear disposition has halted the legal swing moving from one extreme to another from Navjot Sandhu to Anvar P.V. to Tomaso Bruno to Shafhi Mohammad. Section 65(b) of Indian Evidence Act, 1872 deals with the admissibility of the electronic records as evidence in the court wherein the sub-clause (4) mentions that production of a certificate identifying the electronic records is a pre-condition to the placing of evidence before a court. Section 65(B) was introduced 20 years ago after the enactment of Information Technology Act, 2000 before which the electronic evidence was invoked as secondary evidence through the imposition of section 63 and 65 of Indian Evidence Act, 1872. A lot of fuss was created in the past because of varied opinions adopted by the Supreme Court in different judgments as to the binding nature of the controversial section. Sections 65(A) and 65(B) were held to be a complete code in them as to the admissibility of electronic records in the case of Anvar P.V. vs P.K. Bashir and others [2]. 

Section 65(B) opens with a non-obstante clause making it loud and clear that the information contained in electronic media shall be treated as a document admissible as evidence without any further proof of the original document and that this clause shall have an overriding effect over other sections dealing with such evidences. This is regarded as deemed fiction as “documents” under section 3 of the Indian Evidence Act does not include electronic records. However, all these important aspects of the section were overlooked in State (NCT of Delhi) vs Navjot Sandhu [3] wherein section 63 and 65 were invoked for the purpose of admitting secondary evidence in the form of printouts and it was stated that though there are special provisions dealing with electronic evidence but there is no bar in adducing secondary evidence under section 63 and 65. Later Supreme Court in Anvar P.V vs P.K. Bashir and others[4] overruled the above ruling stating it bad in law and holding the principle of Generalia specialibus non derogan(special law will prevail over general law). The court held that evidence by way of electronic record is wholly governed by Section 65-A and 65-B subject to certain requirements in sub-clause (4) of section 65-B. 

Supreme Court in Anvar P.V. vs P.K. Bashir and others [5] also held mandatory compliance of section 65-B in case of electronic records produced as secondary evidence for the purpose of maintaining its sanctity. The strict view was taken keeping in view the susceptibility of the electronic records to tampering, alteration etc. It was further held that no production of a certificate was to be made when these records are used as primary evidence under section 62. Later in Tomaso Bruno vs State of Uttar Pradesh [6] , the court observed the increasing impact of technology in our daily lives which has been a great help to the investigation agencies.  A wider view was taken to make a document admissible as secondary evidence under section 65 but no reference was made to section 65(B)(4) and Anvar P.V.’s case and hence it was overruled in the present case. Later in Shafhi Mohammad vs State of Himachal Pradesh [7], a division bench further diluted the controversial section and observed that though proper care and caution must be taken in case of electronic records but the admissibility of authentic and relevant records cannot be denied simply because of the absence of certificate. The Court held that a party not in possession of the original device cannot be made to produce the certificate and the requirement under 65(B)(4) can be relaxed in the interest of justice. This view was extremely contrary to the view taken in Anvar P.V. case which upheld the strict application of Section 65(B) hence it created a lot of enigma in the legal industry.  

Presently the Shafhi Mohammad case has been overruled in Arjun Khotkar case where the apex court stated that the underlying principle provided in former case that the person not in possession of the electronic device has difficulty in producing the certificate is totally erroneous as an application can be made to the judge for production of such certificate from the concerned person under the provisions of Evidence Act, 1872, Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1973. The Court also made an explicit distinction between the primary and secondary evidence and removed the words ‘under section 62 of Evidence Act’ from the order given in Anvar P.V. case. It also stated that section 65(B)(4) is unnecessary if the original document is produced. However, the court neglected by not taking a note of the technical literature that the originality concept strictly belongs to the paper documents and any computer output will come under the ambit of secondary documents hence will need strict compliance of section 65(B)(4). The primary document in electronic world is in binary form which cannot be read by humans except after conversion. 

The court has made the compliance with 65(B)(4) mandatory in case of secondary evidence. The complete withdrawal of the flexibility provided in Shafhi Mohammad’s case regarding the production of certificate tends to involve certain practical complexities though the court has provided an alternative. The court ignores the fact that in many cases the respondent party exhibits high degree of reluctance in providing the certificate as it has the possibility of becoming detrimental to his/her case by going against him/her. Also if the accused or respondent is compelled by the judge to produce the certificate then it will amount to self-incrimination which is prohibited under Article 20(3)[10]. The court affirmed the non-obstante language of the said section and stated that section 62 and 65 are completely irrelevant for the purpose of the electronic evidence. Till the judgment came into existence, the controversial section was silent about the stage of submission of the certificate but now the court has given a clarified opinion regarding it. The court first observed the general principle that the electronic evidence shall be furnished before the trial begins in order to give the accused a fair chance to defend his case. However, the court opined that in cases where a defective certificate is provided or the certificate is denied by the provider, the court has the discretion of accepting it at any time before the trial is over. The court also issued general directions to the cellular companies and internet service providers to maintain CDR and relevant records in a secured manner. It directed to frame rules and directions under section 67(c) of Information Technology Act for preservation, retrieval and production of electronic records. 

DISCLAIMER : ALL RIGHTS RESERVED TO LEXSTRUCTOR

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References :

[1] (2020 ) SCC OnLine SC 571

[2]  (2014) 10 SCC 473

[3] State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

[4] Anvar P.V. v. P.K. Bashir &Ors. (2014)10 SCC 473

[5] ibid

[6] Tomaso Bruno &Anr v. State of Uttar Pradesh (2015)7 SCC 178

[7] Shafhi Mohammad v. State of Himachal Pradesh (2018)2 SCC 801

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