Case Title: ARJUN PANDITRAO KHOTKAR V. KAILASH KUSHANRAO GORANTYAL AND ORS.
According to the Supreme Court, the certificate needed by Section 65B(4) of the Indian Evidence Act is a prerequisite for accepting evidence in the form of an electronic record.
The bench led by Justice RF Nariman further held that the party seeking the necessary certificate might apply to the court for its production under the provisions mentioned above of the Evidence Act, CPC, or CrPC in a situation where the necessary certificate has been requested from the person or authority, but they have either refused to give such certificate or were unresponsive. The court has also made it clear that if the original document is supplied, then Section 65B(4) certificate is not necessary. Subject to the aforementioned explanations, the court ruled that the decision in Anvar P.V. v. P.K. Basheer & Ors. (2014) does not need to be reviewed. The court also rejected the ruling made in the 2018 case of Shafi Mohammad v. State of Himachal Pradesh by a two-judge panel.
Justices RF Nariman, S. Ravindra Bhat, and V. Ramasubramanian made up the three-judge Supreme Court panel that decided the present case. The main question was whether producing electronic evidence required a certificate under Section 65-B(4) of the Evidence Act.
The issue was raised in light of the dispute between Anvar P.V. v. P.K. Basheer and Shafi Mohammad v. State of Himachal Pradesh by a two-judge bench of Justices Ashok Bhushan and Navin Sinha. In Shafi Mohammad v. State of Himachal Pradesh, it was decided that a party cannot be forced to submit a certificate under Section 65B (4) of the Evidence Act if they do not hold the equipment from which the electronic document is created. The court in that instance was debating whether it was appropriate to require videography of the crime scene or the scene of recovery during an investigation in order to foster trust in the evidence gathered.
It was noted in Anvar P.V. v. P.K. Basheer that an electronic record used as secondary evidence cannot be accepted into evidence unless Section 65B conditions are met. Accordingly, it was decided that in the case of CD, VCD, chip, etc., the same must be accompanied by the certificate acquired in accordance with Section 65-B at the time the document was taken; otherwise, the secondary evidence relevant to that electronic record is inadmissible. In response to the referral, the bench noted the following:
If the original document is produced, the Section 65B(4) certificate is not necessary.
"This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing the information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as "…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…" is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,…" With this clarification, law 81 stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited."
When the required person declines to issue such a certificate, an application to the court may be made.
The court stated that Shafi Mohammad's main argument that such a certificate cannot be obtained by those who do not possess an electronic device, is completely false. When the necessary individual fails to provide a certificate as required by Section 65B(4), a judge may be asked to order their production.
In suitable circumstances, the Court may permit the prosecution to provide this certificate at a later date.
It was noted in Anvar P.V.’s case that such a certificate must be presented with the electronic record when it is introduced as evidence.
Cellular firms and internet service providers are given general instructions to keep CDRs.
In accordance with Section 39 of the Evidence Act, the Court also issued general directives to cellular companies and internet service providers to maintain CDRs and other pertinent records for the relevant period in a segregated and secure manner in the event that a specific CDR or other record is seized during an investigation during that period
The court further ordered, proper guidelines and rules be drafted in accordance with the Information Technology Act, using powers like those in Section 67C, as well as guidelines for the retention of data used in criminal prosecutions, their segregation, rules of chain of custody, record-keeping, and record-keeping for the duration of trials and appeals, as well as guidelines for the preservation of metadata to prevent corruption. The bench added that proper regulations for the storage, retrieval, and generation of electronic records should be drafted.