A three judge Bench of the Supreme Court of India vide its judgment dated July 14, 2020 has held that the certificate required under Section 65B(4) of the Indian Evidence Act, 1872 (“Evidence Act”) is a condition precedent to the admissibility of evidence by way of electronic record. The Supreme Court has tried to resolve the controversy created by different interpretations given by the Supreme Court in State v. Navjot Sandhu, (2005) 11 SCC 600 (“Navjot Sandhu”), Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473 (“Anvar”), Tomaso Bruno and Anr. v. State of Uttar Pradesh, (2015) 7 SCC 178 (“Tomaso Bruno”) and Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 (“Shafhi”), while dealing with the interpretation of Section 65B of the Evidence Act.
Controversy involved:
This whole saga around Section 65B of the Evidence Act began in Navjot Sandhu (supra) where the Supreme Court while considering an issue on production of print out of electronic record as evidence. The Supreme Court held that, “irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65”. The Supreme Court overlooked the non-obstante clause in Section 65B which overrides the other sections, when evidence was digital evidence. By invoking Section 62 and 65 of the Evidence Act, which were meant for paper documents when enacted, the Supreme Court bypassed the entire set of special procedure laid down by scheme of Section 65A and Section 65B together, making the same completely optional.
Thereafter, the three judges Bench in the case of Anvar (supra) overruled Navjot Sandhu (supra) to the extent the statement of law on admissibility of secondary evidence pertaining to electronic record. It held that Section 65A and Section 65B are special provision which relates to evidence relating to electronic record and they are a complete code in themselves. Since special law will prevail over general law, Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B of the Evidence Act. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of the Evidence Act are satisfied.
The three-judge Bench of the Supreme Court in Tomaso Bruno (supra) without referring to the judgement passed in Anvar (supra) followed the law laid down in Navjot Sandhu (supra) and held that secondary evidence of the contents of a document can be led under Section 65 of the Evidence Act.
The view taken by the Supreme Court in Anvar’s (supra) case was diluted by the two-judge Bench of the Supreme Court in Shafhi (supra). The Supreme Court held that on the subject of admissibility of the electronic evidence, by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce a certificate under Section 65B(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.
Thereafter, the Supreme Court settled the controversy in the present case.
Decision by the Supreme Court:
The Supreme Court held that declaration of law in the case of Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar (supra) and cannot be said to be a correct statement of the law. Therefore, the Supreme Court overruled the said judgement.
The Supreme Court overruled the judgement passed in Shafhi (supra) and observed that, though the case did correctly refer to the judgement of Anvar (supra), the Supreme Court had held that Sections 65A and 65B of the Evidence Act cannot be held to be a complete code on the subject, which is directly contrary to what was stated by a three judge Bench in the case of Anvar (supra). The Supreme Court held that the major premise of Shafhi (supra) that a Section 65B(4) certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. The Supreme Court held that an application can always be made to a judge for production of a certificate from the requisite person under Section 65B (4) in cases in which such person refuses to give it.
Resultantly, the Supreme Court overruled the decision in the Shafhi (supra) with the caveat that “in a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.”
The Supreme Court upheld the law down in Anvar (supra) and held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in the case of Anvar (supra), and incorrectly “clarified” in the case of Shafhi (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) of the Evidence Act otiose.
This update has been contributed by Shahen Pradhan (Partner) and Juhi Roy (Associate).
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