ARJUN PANDIT RAO KHOTKAR
vs.
KAILASH KUSHANRAO GORANTYAL & Ors.
[civil appl no. 20825-20826 of 2017]
DATE OF THE VERDICT- July 14th, 2020
BENCH- R F Nariman, S. R. Bhat, V. Ramasubhramaniam.
BACKGROUND OF THE CASE- the decision was given in this amidst of conflicting decisions pronounced by the SC previously, regarding admissibility of electronic evidence. In the present case two petitions were filed against the election of the appellant to the Maharashtra legislative assembly elections. One petition was filed by the candidate who got defeated in the election and the other was filed by one of the electors. Relying on the camera footage the respondents contended that the election was void due to causing delay in filing the nomination forms. The Bombay HC admitted the electronic evidence even in the absence of the requisite certificate as per Sec. 65 B (4) of the Indian Evidence Act.
THE LAW OF SECTION 65 B (4)
Sec 65 B (4) of the Indian Evidence Act makes it mandatory for the person relying on electronic evidence to furnish certificate. This certificate is to be issued by the person who gives the copy of the content of the electronic record from the device which he possesses provided such device was functioning properly during the time when the information was recorded and the copy of that was issued.
THE CONFLICTING DECISIONS WHICH LED TO THIS DECISION
- 2014- Hon’ble SC in Anvar P V vs. PK Basheer held that procedural requirement of Sec 65 B needs to be fulfilled in order to rely on the electronic record for testing its admissibility in the court.
- 2015 – SC in Tomasa Bruno and Anr. vs. State of UP held the electronic evidence to be admissible and that Secs. 65 A and 65B of the Indian Evidence Act are means of clarification and are only procedural provisions. They are not a complete code on the subject. Certificate is not required under Sec. 65 B
- 2016- SC in K. Ramajyam vs. Inspector of Police held that in lieu of the certificate evidence aliunde (elsewhere) can be given by the person who was in possession of the device.
- 2018- SC in Shafhi Mohammed vs. State of Himachal Pradesh held that procedural requirement of Sec 65 B (4) can be relaxed and exempted for the sake of justice provided a party is not in the possession of the device.
ISSUES BEFORE THE COURT-
- Determining the validity of appellant’s election.
- To furnish a clear settlement of law regarding furnishing of certificate under Sec 65 (4)
FINAL VERDICT-
1. The SC upheld the impugned judgment for the reason that the Bombay HC relied on other evidence apart from the electronic evidence to come up with a conclusion.
2. The SC upholding the Anvar PV’s judgment and overruling the Shafhi Mohammed’s Judgement made it clear that the certificate must be mandatorily provided as a condition under Sec65 B (4) for admissibility of electronic evidence. SC also overruled it’s previously given verdicts in Ramajyam and that of Tomaso Bruno.
3. SC differentiated between ‘original document’ and ‘content that maybe treated as evidence of original document’. The original document is the original record contained in the computer in which original information has been stored whereas the latter refers to output of that very information that the computer gives.
4. The certificate as required under Sec 65 B is not necessary if the original document is produced as primary evidence. The owner of the respective electronic device be it PC, laptop, tablet etc. can provide it by stepping in the witness box and has to prove that the device which he is producing contained the original information and that it has been operated by him. But where it is physically impossible to bring the device to be produced in the court the requisite condition of producing the document along with the certificate has to be fulfilled.
5. Where there is refusal to grant the certificate to furnish the evidence, it can be retrieved by making an application for that. But for that the party requiring such certificate needs to fulfil their entire legal obligation in order to procure that.
6. The electronic evidence is required to be furnished before the trial is about to begin. If the accused desires to produce the certificate then it shall depend on the facts and circumstances of the case as well as the discretionary power exercised by the court. As long as the hearing runs and the trial is not over yet then the court can direct, to produce the requisite certificate at any stage of the trial.
7. SC has issued guidelines for the ISPs (internet service providers) and the cell phone companies regarding maintenance of CD records and other records relevant for the purpose of seizure during investigation, or to be produced by the defence as evidence or during cross-examination.
8. SC while referring to a set of draft rules suggested by a committee constituted in 2018 opined that such draft rules should be given statutory recognition which shall help and guide the courts regarding the preservation and retrieval of such electronic records.
9. Having regard to Sec 67 C of the IT Act, 2008; appropriate rules should be framed to for retaining data to be used in the trial of offences, for stamping and maintaining records etc. in order to avoid corruption.
CONCLUSION
Thus the SC has settled the position of law regarding furnishing electronic evidence and its admissibility under Sec65 B (4) of the Indian Evidence Act, and has also clarified the option for those who are not in possession of the electronic device. The court has the power to order or relax production of requisite certificate in the interest of justice and according to facts and circumstances of a particular case.
