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Need of the hour to relook at Section 65B, Indian Evidence Act: Supreme Court

Akanksha.

While hearing the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, the court held that the requirement of certificate under Section 65B (4) is a condition precedent to the admissibility of electronic evidence. 

Justice V. Ramasubramaniam, giving a concurring judgment, said,

“The major jurisdictions of the world have come to terms with the change of times and the development of technology and fine­tuned their legislations. Therefore, it is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu to Anvar P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad.”

Background: A three judge bench in Anvar overruled a previous judgment of Navjot Sandhu and held that the production of a certificate under Section 65-B(4) to be a mandatory requirement for the admissibility of electronic evidence. It also marked electronic records as a class on their own and had to be proved only in accordance with Section 65B. Later, a three judge bench in Tomaso Bruno, without reference to the judgment in Anvar held that the contents of an electronic record may also be proved under Section 65, Evidence Act, by treating it as ordinary secondary evidence. In 2018, a two judge bench in Shafhi Mohammad while relying on the judgment in Tomaso Bruno held that electronic evidence is admissible as long as it is “authentic and relevant” and deemed it fit to relax the ‘procedural requirement’ of a certificate when the person adducing such electronic evidence was not in custody of the device.

Ruling in Arjun Panditrao: Considering the ambiguity surrounding the mandatory nature of the certificate, the Court in Arjun Panditrao has held Shafhi Mohammad to be bad law and overruled it for being in contravention of the decision of the three judge bench in Anvar. Further, the decision in Tomaso Bruno has been declared per incuriam due to its ignorance of the law set down by Anvar – a previously pronounced judgment of a co-equal bench. To proffer solutions to the issue raised in Shafi Mohammed regarding the difficulty of producing a certificate by a party who is not in possession of an electronic device, the Court suggests that it is always possible for the trial court to exercise its power to summon the certificate from the requisite person. In fact, the opinion of Justice R.F. Nariman goes one step further, to place a positive obligation on the judge conducting the trial, to summon the certificate when an electronic record is produced in its absence.

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