Arjun Panditrao Khotkar case: The Story of Electronic Evidence so far

On 14 July 2020 a 3-judge bench led by Justice R.F Nariman gave its landmark judgment on the admissibility of electronic record as secondary evidence in the case of Arjun Panditrao Khotkar v.  Kailash Kushanrao Gorantyal and ors[1], where it upheld the position taken by the Supreme Court in Anvar P.V v. P.K Basheer [2] case in 2014. The 141-page judgment, delivered by the 3-judge bench of the Supreme Court, overruled the Shafhi Mohammad[3] case and declared the Tomaso Bruno[4] judgment to be per incuriam.

The bench entrenched the mandatory nature of Section 65B(4) and held that Section 65A and 65B constitutes “a complete code in itself” on electronic records. Resorting to the principle of “Generalia specialibus non derogant” (special law will always prevail over the general law), the Apex court held that Section 63 and 65 of the Indian Evidence Act, 1872 shall have no application when it comes to the admissibility of electronic records when they are presented as secondary evidence.

The Court reiterated the position of the 3-judge bench in Vikram Singh and Anr. v. State of Punjab and Anr. [5], which said that in cases where electronic records constitute primary evidence, such electronic records shall be admissible under Section 62 of the Indian Evidence Act, 1872 and no certificate under Section 65B(4) would be necessary.

However when such electronic records constitute ‘Secondary Evidence’, a mandatory certificate under Section 65B(4) is required to establish its authenticity, admissibility, and compliance with the requirements of Section 65B(2). Justice V. Ramasubramanian in his concurring opinion illustrated the mandatory necessity of such a certificate in electronic records in contrast to the analogous sources, “In analogue technology, a wave is recorded or used in its original form. When someone speaks or sings, a signal is taken directly by the microphone and laid onto a tape, if we take the example of an analogue tape recorder. Both, the wave from the microphone and the wave on the tape, are analogue and the wave on the tape can be read, amplified and sent to a speaker to produce the sound. In digital technology, the analogue wave is sampled at some interval and then turned into numbers that are stored in a digital device. Therefore, what are stored, are in terms of numbers and they are, in turn, converted into voltage waves to produce what was stored.”(para 13) In digital technology, such information which is stored in the form of digits can be easily manipulated, as pointed out be several experts in the field.

When electronic record is admitted, both its data and metadata are important aspects. In fact, it is the metadata which plays the key role in determining the admissibility of the electronic record as primary evidence or secondary evidence.

What is metadata?

Metadata is basically data about the data itself which facilitate the identification of the origin, destination, date and time of dispatch or receipt of such electronic record etc. It describes, explains, locates, or otherwise makes it convenient to retrieve, use, as well as manage a given information resource. In other words, it provides information about any communication made through electronic means.

For example, in case of phone calls, the metadata is the call detail records (CDR) such as:

• phone numbers of the caller and the recipient
• the time of the phone call
• duration of the phone call
• location of caller and the recipient at the time of call
• IMEI (International Mobile Equipment Identity) number (it is a 15-digit serial number that identifies the wireless phone/device)

When electronic record is copied, transferred or retrieved to another medium, the data can be copied in toto without any tampering, but the data copied to the new source generates altogether a new set of meta data. For an electronic record to be admissible in Court as primary evidence, the metadata of the original source must match with that of the presented document. If that not be the case, the credibility of such electronic record is disputed. In order to put rest to speculations around potential tampering of the data (NOTE: any change or interference with the electronic record is reflected by a change in its meta data), a certificate is therefore stipulated under Section 65B(4) of the Indian Evidence Act, 1872 purported to be issued and signed by a person who can authoritatively claim to be either the owner or a responsible official possessor of the device or source of such electronic record. Such a certificate in necessary as “electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of (such) electronic records can lead to travesty of justice” (para 16 of the Judgment).

A Tale of Two Judgments

The Supreme Court in its 2014 judgment of Anvar case upheld the mandatory nature of Section 65B(4) when electronic record is proposed to be admitted as secondary evidence. The bench held that Section 65A and 65B being a ‘complete code’ and ‘special provisions’ specifically concerning the procedure regarding admissibility of electronic records, can not be subjugated to give room for the application of Section 63 and 65. The case overruled the previous contention of the Supreme Court in Navjot Sandhu case which allowed for an alternate pathway of Section 63 and 65 for admission of such electronic records where the procedure of Section 65B is not resorted to by the parties.

But within a few months, in January 2015, a judgment by another bench of equal strength of 3 judges, in Tamaso Bruno v. State of U.P would take a completely different recourse. The bench would not even acknowledge the position in Anvar case and erroneously reiterate the position of Navjot Sandhu case, that electronic records can be admitted under Section 63 and 65 as secondary evidence and Section 65A, 65B do not constitute a ‘complete code’ on the subject matter.

The confusion would exacerbate when a 2 judge bench in Shafhi Mohammad case would explicitly declare that the requirement of certificate under Section 65B(4) can be exempted in the interest of justice in appropriate situations where it is not possible for the party to obtain the relevant certificate under Section 65B(4). The bench laid down that, “The applicability of procedural requirement under Section 65B(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 absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.” (para 11, Shafhi Mohammad)

It must be submitted at this stage that the judgment of Shafhi Mohammad was not wrong per se when scrutinized from the perspective of the doctrine of stare decisis. The bench in Shafhi Mohammad was confronted with 2 judgments of equal bench strength, issued within an interval of a few months, which locked horns over an issue where they projected completely opposite conclusions. The bench tried to harmonize these two opposite viewpoints, where it held that in situations of normal discourse where it is possible to obtain a certificate under Section 65B(4), it would be mandatory to obtain the same. However, where such a party is not in a position to pursue and obtain such a certificate, it can be exempted in the ‘interest of justice’. To arrive at this conclusion, the bench effectively preferred the rationale of the most recent Tamaso Bruno case to arrive at its conclusion, and overlooked the viewpoint taken in Anvar case.

Re-ignition of the debate

However, Shafhi Mohammad case suffered from an infirmity, wherein it failed to secure a valid justification for completely dispowering the position setup in Anvar case. In the tradition of court precedent, following Tamaso Bruno, which succeeded Anvar, was not an invalid step. But Tamaso Bruno itself fell short of observing this principle by never acknowledging Anvar’s position. The Court seemingly issued its judgment in ignorance of the Anvar case, making its decision ‘per incuriam’. Therefore, the responsibility for supplying a justification fell incumbent upon the bench in Shafhi Mohammad case. But the bench in Shafhi Mohammad failed to seize this opportunity and ritualistically obeyed the dictates of Tamaso Bruno without addressing its defects or (ideally) referring it to a larger bench. Consequently, creating a disarray of different legal positions floating around.

It must be noted that Anvar was never overruled by a bench of equal or larger strength. Shafhi Mohammad (a division bench decision), which did overrule Anvar case (a 3-judge bench decision), never had the power to do so.

The dilemma finally materialised into Court’s acknowledgment in July, 2019 when in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the division bench of the Supreme Court while deciding the appeal arising from an election petition, referred the issue to a larger bench.

The new bench underwent the intricacies of all the debate surrounding the issue and clarified the legal position on 14 July, 2020. The bench led by Justice R.F Nairman, overruled Shafhi Mohammad and declared Tamaso Bruno as per incuriam, and established Anvar to be the correct position, for 2 basic premises:
1. Section 65B begins with a non-obstante clause, explicitly making clear the intent of the legislation that “when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf – Sections 62 to 65 being irrelevant for this purpose.” (para 31)

2. The Information Technology Act and the consequential amendment in Indian Evidence Act, 1872 which introduced Section 65A and Section 65B were brought into existence in the year 2000. Both Tamaso Bruno and Shafhi Mohammad relied their position on the basis of judgments which were pronounced before the year 2000 and therefore were redundant as well as irrelevant for the interpretation of these statutes. (for reference see para 37)

Asserting the application of the principle of “lex non cogit ad impossibilia” (the law does not demand the impossible), and “impotentia excusat legem” (when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused), the bench, however, did acknowledge the difficulties which might arise out of such a hardlined approach of prescription of a mandatory certificate and that certain situations can arise wherein it would not be within the ability of the party presenting electronic evidence to furnish a certificate under Section 65B(4).  The approach could serve as a potential roadblock to the dispension of justice, causing unnecessary delay as well as exclusion of important pieces of evidence which would otherwise be admissible. To that extent, the bench was in agreement with Shafhi Mohammad, but it shunned the recourse prescribed in Shafhi Mohammad which betrayed the language and intent of the Section 65B. It was essentially because Section 63 and 65 were inadequate to supply a paradigm for admission of secondary electronic evidence, that a necessity was felt to introduce Section 65A and 65B. Reverting back to them and making admission under Section 65B an optional protocol, therefore, could not be declared the right approach.

The infirmity however was curable by prescribing an alternative pathway, which would be valid within the procedural ambit of the court and at the same time not distort the integrity of Section 65B. Section 165 of the Indian Evidence Act, 1872 gives a discretionary power to the Judge to put questions or order production of any document (including electronic records) in order to discover or to obtain proper proof of relevant facts. The judge can “ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question”(Section 165 IEA). In that respect, an application can always be made to the judge to exercise his discretionary power under Section 165.

In case a person is unable to furnish a certificate under Section 65B(4) due to some intervening impossibility or the device being in possession of the adverse party, the bench prescribed that, it was always open to such person to make an application the Court to order summon of such certificate from the concerned authority. In para 45 the Court says, “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 Civil Court under Order XVI Rule 6, 7 and 10 have the power issue such summon and prescribe a punishment when the concerned authority/party fails to furnish or asserts a false declaration on the certificate. In cases of criminal trials, the Criminal Court has the same vested power under Section 91 r.w Section 349 of the CrPC.

Ending One, Creating Another

While essentially putting rest to the controversial position surrounding the application of Section 65B, the bench did gave birth to another. The majority judgment delivered by Justice R.F Nariman suffered from severe infirmity where it stipulates that a certificate issued under Section 65B of the Indian Evidence Act, 1872 can be admitted at any stage of the trial and not necessarily at the time of deposition of the electronic evidence before the beginning of the trial. Section 65B does not refer to the stage at which the certificate under Section 65B(4) ought to be furnished, and therefore a presumption has been validated in the absence of any such requirement, that it can be submitted at any stage of the trial, even in appeal. It upheld the position laid down by the Delhi High Court in Kundan Singh v. State[6]  and Rajasthan High Court in the case of Paras Jain v. State of Rajasthan[7] that the requisite certificate need not necessarily be given at the time of tendering of evidence but can be admitted at any subsequent stage of the proceedings. This is however a problematic proposition, as it allows legally sanctioned room to the party withholding the certificate to delay the proceedings indefinitely. Directions that such certificate can be produced at any stage before the completion of the trial, shall be operating as a procedural handicap in practical terms. Failure to conclusively designate a relevant stage for the production of Section 64B(4) mandated certificate, would create disarray and uncertainty over the procedure observed in Trial courts for admitting electronic records as evidence, and operate as self-defeating. This would lead to parties being reluctant to base their case on electronic evidence which can otherwise be potentially exculpatory.

Future Prospects

Aspirations over a conclusive position on admissibility of electronic evidence and Section 65B are yet to be convincingly satisfied. The judgment effectively settled the position regarding Section 65B in a positivist legislative tradition, failing to address and juxtapose it in light of the practical considerations and issue of ensuring smooth procedural facilitation of admission of electronic evidence. This is amusingly a baffling stance, when we recall that the Supreme Court has often ceremoniously reiterated its sacrosanct devotion to the fact that ‘Procedural law must be the handmaid of justice’.

In his infamous judgment in State of Punjab And Another vs Shamlal Murari & Anr[8], Justice Krishna Iyer contrasted this position saying, “We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice…..After, all Courts are to do justice, not to wreck this end product on technicalities.”  An examination of the whole controversy around the ‘mandatory vs. optional’ nature of the certificate under Section 65B(4), on the touchstone of this established proposition of procedural law, would perhaps have yielded an altogether different judgment. The decision which declared Tamaso Bruno to be per incuriam, therefore, examined closely, itself is potentially infructuous.  

However, it would be unfair to impute the whole blame surrounding the debate on Judiciary. A poorly drafted law is bound to create ruckus both in its execution and adjudication. The problem is bound to exacerbate, when it is made incumbent upon the judiciary (which never brought the law in the first place) to justify such inherently archaic laws within its existing legal setup. Section 65B, in its present form, is a pari materia reproduction of Section 5 of the UK Civil Evidence Act, 1968, which was declared bad law and already repealed England in 1995 by U.K Civil Evidence Act, 1995 (5 years before Section 65B was enacted in India).

The bench in Arjun Panditrao Khotkar case, goes on to iterate several times in the judgment over its disapproval of the modus operandi of Section 65B and its poor unthoughtful drafting. In fact, Justice V. Ramasubramanian would dedicate a 57 page concurrent opinion, which essentially expresses the monologue of Judiciary’s resentment and inability on the face of existence of such unpragmatic, redundant and disoriented IT laws. Justice Ramasubramaniam elucidated the position of Evidence laws in United Kingdom, USA and Canada and based his premises on key pronouncements of English Courts to contrast the obsolete nature of Indian IT laws. Unlike Section 65B of the Indian Evidence Act, 1872 which presumes all electronic evidence to be tampered and unworthy of admission unless approved by a mandated certificate under Section 65B(4), the jurisdictions in other countries have rather resorted to the ‘Presumption of Integrity’ of electronic records, wherein all electronic records are admitted by their jurisdictional courts under the presumption of such electronic records being proper and untampered unless proved otherwise. Canada as a matter of fact, would prescribe more than one method of admitting electronic evidence under Section 31 of the Canada Evidence Act, 1985. Such flexible stance regarding admissibility of electronic records is the demand of judicial system to cope up with the increasingly digitalised world.

Today digital footprints, cyber investigation as well as cyber forensic departments have changed the mode of operation of several crimes as well as innovated some new ones. Moreover e-commerce, e-communication, maintenance of online registry, records etc have replaced the traditional methods of paper record keeping and transactions. Moreover, digital progress has made it easier to gather evidence and track digital footprints. But how far such evidence through electronic means can secure ends of justice would depend upon the flexibility of admission of such evidence offered in the court of law. The current procedural roadblock approach effectively serves as a handicap which cannot be remedied through the frontiers of Judicial dictates but instead only through legislative reform. The Parliament has been time and again asked by different quarters to bring in reforms in its IT laws.

In that context the bench in Arjun Panditrao Khotkar case has again urged the Parliament to bring necessary reforms. Referring to the resolution made on 23 April 2016 at conference of the Chief Justices of the High Courts, chaired by the Chief Justice of India for developing a “uniform platform and guidelines governing the reception of electronic evidence”, the Apex court made recommendations that the framed ‘Draft Rules’ and Report submitted in November, 2018 by the 5 judge Committee in furtherance of the said resolution must be given consideration by relevant Legislative authorities “with the object of giving them statutory force, to guide courts in regard to preservation and retrieval of electronic evidence.”

It is highly unlikely that a decisive judicial position in regards to Section 65B has been settled with the Arjun Panditrao Khotkar case. Unless a concrete legislative action is taken in this direction, the debate surrounding the nature of Section 65B would potentially get murkier and much more befuddling with each successive litigation.

[1] CIVIL APPEAL NOS. 20825-20826 OF 2017
[2] Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 Source Link.
[3] Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801
[4] Tomaso Bruno vs. State of UP, (2015) 7 SCC 178
[5] Vikram Singh and Anr. v. State of Punjab and Anr.  (2017) 8 SCC 518
[6] 2015 SCC OnLine Del 13647
[7] 2015 SCC OnLine Raj 8331
[8] 1976 AIR 1177