Admissibility and Evidentiary Value of Call Records in Indian Law
Introduction
In an era characterized by ubiquitous digital communication, call records, encompassing both Call Detail Records (CDRs) and recorded conversations, have emerged as a pivotal form of evidence in civil and, more prominently, criminal litigation in India. CDRs provide metadata such as the identities of communicating parties, call timings, duration, and often, the geographical location of the devices involved through cell tower information. Recorded conversations, when lawfully obtained, offer direct insight into the content of communications. The admissibility and evidentiary value of such electronic records are primarily governed by the Indian Evidence Act, 1872, particularly Sections 65A and 65B, which were introduced by the Information Technology Act, 2000. This article seeks to analyze the evolving jurisprudence surrounding the admissibility of call records as evidence in India, with a focus on key judicial pronouncements that have shaped the current legal landscape.
Legal Framework for Electronic Evidence: Sections 65A and 65B of the Indian Evidence Act, 1872
The Indian Evidence Act, 1872, was amended by the Information Technology Act, 2000, to include provisions specifically addressing electronic evidence. Section 65A stipulates that the contents of electronic records may be proved in accordance with the provisions of Section 65B. Section 65B, therefore, stands as a special provision governing the admissibility of electronic records.
Section 65B(1) states that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in sub-section (2) are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
Sub-section (2) of Section 65B lays down the conditions for admissibility, which include: (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
Crucially, Section 65B(4) mandates a certificate identifying the electronic record, describing the manner of its production, giving particulars of the device involved, and certifying compliance with the conditions of Section 65B(2). This certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. As held in Dharambir v. Central Bureau Of Investigation (Delhi High Court, 2008), such a certificate "shall be evidence of any matter stated in the certificate."
Evolution of Judicial Interpretation
Early Approaches and the Navjot Sandhu Era
Prior to the definitive interpretations of Section 65B, the judiciary grappled with the admissibility of electronic evidence, including call records. The Supreme Court in R. M. Malkani v. State Of Maharashtra (1973 SCC 1 471, 1972), dealing with tape-recorded conversations, held that such recordings are admissible if relevant and authentic, and if the voices are properly identified, provided the evidence was not obtained in contravention of constitutional rights or the Indian Telegraph Act, 1885.
In State (NCT Of Delhi) v. Navjot Sandhu Alias Afsan Guru (2005 SCC 11 600), the Supreme Court considered printouts of computerized records of cell phone calls. It held that irrespective of compliance with Section 65B, secondary evidence of electronic records could be adduced under Sections 63 and 65 of the Evidence Act if the original was not easily movable. The Court opined that printouts taken by mechanical process and certified by a responsible official of the service-providing company could be led in evidence. This interpretation suggested a more flexible approach, allowing general provisions of secondary evidence to apply to electronic records. The Delhi High Court in Dharambir v. Central Bureau Of Investigation (2008) also discussed the procedure for recording telephone calls and the use of a Section 65B certificate for computer-generated WAV files transferred to compact discs.
The Paradigm Shift: Anvar P.V. v. P.K. Basheer
A significant jurisprudential shift occurred with the Supreme Court's decision in Anvar P.V v. P.K Basheer And Others (2015 SCC CRI 1 24, 2014). The Court overruled the position in Navjot Sandhu (2005) regarding the applicability of Sections 63 and 65 to electronic records. It held that Section 65B is a special law that overrides the general law on secondary evidence. The Court declared that "an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissible." This ruling established Section 65B as a complete code for the admissibility of electronic records.
The impact of Anvar P.V. (2014) was profound, mandating strict compliance with Section 65B for call records to be admissible. Cases like Ibrahim v. State By: Intelligence Officer Narcotics Control Bureau (Madras High Court, 2017) saw call detail records, obtained prior to the Anvar P.V. judgment, being rendered inadmissible due to the absence of the requisite Section 65B certificate. Similarly, the Delhi High Court in Rekha Sharma v. Central Bureau Of Investigation (2015) acknowledged the law enunciated in Anvar P.V. (2014).
Clarifications and Reaffirmations: Arjun Panditrao Khotkar
Despite the clarity provided by Anvar P.V. (2014), some conflicting interpretations emerged, notably in Shafhi Mohammad v. State Of Himachal Pradesh (2018) 2 SCC 801, which suggested that the requirement of a certificate under Section 65B(4) was procedural and could be relaxed if a party was not in possession of the device. The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal And Others (2020 SCC CIV 4 1) conclusively settled the position. It reaffirmed the law laid down in Anvar P.V. (2014) and overruled Shafhi Mohammad (2018) and Tomaso Bruno And Another v. State Of Uttar Pradesh (2015 SCC 7 178) to the extent they were inconsistent with Anvar P.V. (2014).
The Court in Arjun Panditrao Khotkar (2020) reiterated that the certificate under Section 65B(4) is a condition precedent to the admissibility of electronic evidence. However, it also acknowledged that the law does not compel the impossible (lex non cogit ad impossibilia) and impotentia excusat legem (inability excuses compliance with the law), allowing for situations where a party, despite diligent efforts, cannot produce the certificate. In such cases, the court may allow the production of electronic evidence if the party has applied to the court to direct the person in possession of the device or the original electronic record to produce the certificate.
This definitive ruling has been consistently followed. For instance, in Ravinder Singh Alias Kaku v. State Of Punjab (2022 SCC CRI 3 211), the Supreme Court noted that Arjun Panditrao Khotkar (2020) had conclusively settled the law on the mandatory nature of the Section 65B(4) certificate. Similarly, in Devaram v. State, Through Pp (Rajasthan High Court, 2022) and WILLIAN STEPHEN v. THE STATE OF TAMIL NADU AND ANR. (2024 SCC 5 258), call detail records were held inadmissible for want of the Section 65B certificate, citing Arjun Panditrao Khotkar (2020).
Procedural Aspects: Timing of Objections and Preservation
The Supreme Court in Sonu Alias Amar v. State Of Haryana (2017 SCC 8 570), while dealing with CDRs, emphasized that objections regarding the mode of proof (such as the absence of a Section 65B certificate) must be raised at the trial stage when the document is tendered in evidence. If not raised then, such objections cannot typically be raised at the appellate stage, especially if the defect is curable. The Court distinguished between documents inherently inadmissible and those where the mode of proof is irregular.
The issue of preservation and timely summoning of call records is also critical. In RAVINDRA KUMAR MEGHWAL S/O BABULAL MEGHWAL v. STATE OF RAJASTHAN (Rajasthan High Court, 2024), the court highlighted the importance of securing call records promptly to avoid their deletion by telecom service providers due to passage of time, emphasizing that procedural rules should facilitate justice, not hinder it. The Supreme Court in Suresh Kumar v. UOI (2014 SCC ONLINE SC 1731) recognized the accused's right to summon relevant and admissible electronic records, including call details, in their defence, subject to the fulfilment of Section 65B requirements.
Contents and Probative Value of Call Detail Records
CDRs typically provide information such as the calling and called telephone numbers, date and time of calls, duration of calls, and often, the International Mobile Subscriber Identity (IMSI) and International Mobile Equipment Identity (IMEI) numbers. Crucially, they can indicate the approximate geographical location of a mobile device at the time of a call through cell tower triangulation. This information is widely used as circumstantial evidence to establish communication between accused persons, their presence at or near a crime scene, or to corroborate or contradict alibis.
For instance, in Data Ram v. Govt. Of Nct Of Delhi (2013 SCC ONLINE CAT 733), a pre-Anvar P.V. case before the Central Administrative Tribunal, call records authenticated by Nodal Officers of telecom companies were relied upon to establish that the applicants were in touch with a particular individual. While the authentication standards have since been stringently defined by Section 65B(4), the case illustrates the utility of CDRs in establishing links.
However, it is important to recognize the limitations of CDRs. They prove that a particular mobile number (SIM card) was used or that a particular handset (IMEI) was active at a certain location and time, but they do not, by themselves, prove that the accused individual was using that specific phone. Further, CDRs only provide metadata and do not reveal the content of the conversation unless the call was also lawfully intercepted and recorded, in which case the recording itself would be electronic evidence requiring Section 65B compliance.
Call Records, Interception, and Privacy Concerns
The generation and use of call records, especially recorded conversations, intersect with privacy rights. Lawful interception of communications is governed by Section 5(2) of the Indian Telegraph Act, 1885, and Section 69 of the Information Technology Act, 2000, read with the relevant rules. Evidence obtained through unlawful interception may face challenges regarding admissibility, though Indian evidence law, unlike some jurisdictions, does not strictly adhere to the "fruit of the poisonous tree" doctrine for all illegally obtained evidence if it is otherwise relevant.
The Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1 affirmed the right to privacy as a fundamental right under Article 21 of the Constitution of India. Any state action, including the collection and use of call records, must meet the tests of legality, legitimate state aim, and proportionality. As observed in R.M. Malkani (1972), evidence obtained by illicit means might still be admissible if relevant, but the court deprecated unlawful means of evidence collection. The focus remains on the relevance and authenticity of the evidence, coupled with compliance with statutory procedures like Section 65B. The Delhi High Court in cases like Santosh Kumar v. Union Of India And Another (2022) and SH. TAUKIR AHMAD (HUSSAIN) v. STATE & ANR. (2022) has reiterated the principles from Puttaswamy (2017) regarding reasonable restrictions on privacy for legitimate state interests.
Conclusion
The jurisprudence surrounding the admissibility of call records as evidence in India has undergone significant evolution, culminating in the strict regime established by Section 65B of the Indian Evidence Act, 1872, as interpreted and reaffirmed by the Supreme Court in Anvar P.V. (2014) and Arjun Panditrao Khotkar (2020). The mandatory requirement of a certificate under Section 65B(4) is now a cornerstone for the admissibility of CDRs and recorded conversations presented as electronic records.
Call records serve as crucial circumstantial evidence in modern investigations and trials, capable of establishing vital links, locations, and timelines. However, their probative value must be assessed carefully, considering their inherent limitations and the necessity of corroboration. The judiciary continues to play a vital role in balancing the utility of such technological evidence with the fundamental principles of a fair trial, due process, and the right to privacy. Legal practitioners and courts must remain vigilant in ensuring strict adherence to procedural safeguards to maintain the integrity of the evidentiary process in the digital age.