Certification of Electronic Evidence: under a shroud of Ambiguity
The value of the evidence is adjudged on the basis of relevance, procurement, storage and production. All the evidences, whether it be oral testimony or documentary evidence their authenticity is decided by the court. In court rooms it is seen that the witnesses lie and manipulate facts even when they are under oath and hence commit perjury. Similarly, it is also seen that documentary evidences may be fabricated.
This brings us to the very essential point and that is, that the electronic evidences are also susceptible to tampering. There are a plethora of judicial pronouncements pointing out that the standard of proof for electronic evidence should be more stringent as compared to other documentary evidences. In the landmark case of Tukaram S. Dighole v. Manikrao Shivaji Kokate it was held that:
“Tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be considered with caution.”
The definition of the Electronic Evidence is largely covered under The Indian Evidence Act, 1872, and the Information and Technology Act, 2000.
Although Section 3 of the Indian Evidence Act, 1872 defines evidence as:
“All documents including electronic records for the inspection of the court”.[]
“Video footage/clipping contained in such memory card/pen-drive being an electronic record as envisaged by Section 2(1)(t) of the IT Act,2000 is a "document" and cannot be regarded as a material.”
Judicial Pronouncements on Admissibility of Electronic Evidence
Before learning about judicial stand on admissibility of electronic evidence it is pertinent to note that there are two essential sections i.e. sections 62 and 63 of the Indian Evidence Act, 1872 []. These provisions talk about the admissibility of primary and secondary evidence before a court.
The Full Bench of the Supreme Court in the case of State (NCT of Delhi) v. Navjot Sandhu & Ors. held that section 63 of the Act means:
“Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”.
By this the court wanted to express that irrespective of compliance as mentioned in Section 65B, there is no bar to the admissibility of electronic evidence as secondary evidence under other provisions of the Evidence Act. Hence the inference that can be drawn from what the judicial intent was that the application of 65B is limited to primary evidence and hence the electronic evidence can be admissible through secondary evidence that is Section 63 and Section 65 as there is no bar in adducing secondary evidence. But this leniency to Section 65B requirement was applicable to that person who is not in possession of the device.
In the case of Anvar PV v. PK Basheer the Court adopted the “stricto sensu” approach and overruled the Navjot Sandhu case. It clearly held that to make any electronic evidence or electronic record admissible before the court the requirement of giving an electronic certificate under Section 65B(4) is mandatory.
This case helped to give a clear position of law that to make documentary evidence by way of an electronic record under the Evidence Act, from the prism of Sections 63 and Section 65 can be proved only in accordance with the procedure prescribed under special provisions of Section 65A and 65B.
In the landmark judgement of Shafhi Mohammad v. State of Himachal Pradesh the court increased the ambiguity as it questioned the procedure for the admission and appreciation of electronic evidence under Section 65B read with Section 62 and 63 of the Indian Evidence Act, 1872 The opinion of the judges in this case was in stark contravention with that of Anvar PV as in the case of Shafhi Mohammad the court held that the requirement of certificate under Section 65B is not always mandatory and that the electronic evidence can be held admissible if it is in the interest of justice. The Apex Court held:
“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.”
The judicial intent behind this judgement was that if the person who is in possession of the authentic evidence but is not able to produce the certificate or is not able to fulfil the compliance as laid under Section 65B(4) then that would be denial of justice. Thus the court held that it is not always mandatory to produce the certificate.
The judgment of Shafhi Mohammad case was widely criticized as it did not follow the doctrine of “stare decisis” as laid down by apex court in various judgements.
Furthermore, Shafhi Mohammad needs to be reconsidered as this judgement is clearly “per incuriam”. The Supreme Court, in the case of Roger Shashoua v. Mukesh Sharma in a lucid way explained the concept of “per incuriam” and said:
“A decision or judgement can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger bench”.
In the recent case of Arun Pandit Rao Khotkar v. Kailash Khusan Rao  it was held that the case of Shafhi Mohammad needs to be reconsidered by a larger bench of the Supreme Court of India. It also stated to reinstate the Anvar PV case decision as the court considered the view as laid down in Anvar PV case.
Unfortunately, no such judicial decision has been laid down that reconsiders the judgement of Shafhi Mohammad. It is pertinent to note that the issue of admissibility of electronic evidence is of such importance and that this matter should have been kept at the pinnacle of priorities as the court had also stated in the Arun Pandit case (2019):
“Needless to say that there is an element of urgency in the matter.”
[] (2010) 4 SCC 329.
[] Appeal (Crl.), 1794 of 2019.
[] (2005) 11 SCC 600.
[] (2014) 10 SCC 473.
[] (2018) 5 SCC 311.
[] (2017) 14 SCC 722.
[] civil appeal no(s). 20825-20826 of 2017.