Digital Footprints of Section 65 (B) IEA- Jurisprudence

Digital revolution has marked a significant change in almost all the dimensions of our lives, hence the legal system is also not untouched from it. Be it a question of relevancy and admissibility of a particular document in some judicial proceeding or otherwise or the question to examine its legality or veracity in that particular proceeding, a paradigm shift is witnessed. By enacting Information Technology Act, 2000 and thereby introducing certain amendments in relevant statutes to give a colour of digital and technological advancements, a sincere effort has been made by both the pillars of government, i.e. the legislature as well as judiciary.

Section 3 of the Indian Evidence Act, 1872 while defining the term evidence says that all documents including electronic records which are produced before the courts for inspection of the court is called documentary evidence. Therefore, electronic evidence is a sort of documentary evidence. Further to clarify and to build a meaningful nexus with the IT Act, 2000 the Indian Evidence Act, 1872 declares that the expressions “Certifying Authority”, “electronic signature”, “Electronic Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000. In continuance thereof, section 2(i) of the code of Criminal Procedure, 1973 defines the term judicial proceedings as includes any proceeding in the course of which evidence is or may be legally taken on oath. This understanding becomes significant when it comes to understand the concept of primary Evidence and secondary evidence under Chapter V of the IE Act, 1872. Chapter V deals with documentary evidence only. So whether a particular electronic evidence is primary or secondary is a very crucial aspect to be underlined. Because secondary evidence is not admissible per se. Section 62 of the Act, 1872 clearly says that the document which is produced itself before the court for inspection is primary evidence and hence admissible in judicial proceedings per se. however, section 65 of the Act, 1872 enumerates circumstances when secondary evidence may be given of a particular document. The probative worth, admissibility, relevancy which includes both legal relevancy or logical relevancy, all these factors play a very pivotal role in fixing the innocence or guilt of an accused in criminal jurisprudence or for that matter when a civil court adjudicate upon rights and liabilities of the parties to a suit.

In matrimonial cases, where the questions comes to ascertain the cruelty (be it physical or mental) WhatsApp chat or call details play a very important role in proceedings before the family courts. In contracts, the telecommunications, fax, e-mail etc. are so important to fix the liability for any breach of contract and awarding damages. In criminal justice system the role of electronic evidence cannot be negated at all when it comes to examine the plea of alibi under section 11(2) of the Act, 1872 or for any other matter connected therewith. Section 4 of the Information Technology Act, 2000 gives legal recognition to electronic records. A case before a criminal court is having only and only circumstantial evidence, the importance of digital footprints are of paramount significance.  This necessitates the importance to understand the nuances of electronic evidence and its applicability and practical understanding by both the Bar as well the Bench.

The Supreme Court of India has recently settled the law on admissibility of electronic evidence and the requirement of mandatory certificate under section 65-B of the Indian Evidence Act, 1872. In the matter of Arjun Pandit Rao v. Kailash [(2020), 3 SCC 16] the Apex court while giving final interpretation as to some of the questions pertaining to it, leaves the digital jurisprudence unanswered with some fresh questions. This article is an attempt to underline the judicial progress on this subject and to suggest a way forward in this connection.

The CCTV footage, CD, DVD, VCR, pen drive, I-pad, cell phone, e-cigarettes, printer, laptop, desktop etc. are some the illustrations of electronic evidence and when it is produced itself before the court for inspection, it is primary evidence and thus per se admissible in law in judicial proceedings. It would not be out of context to refer section 207 of the Code of Criminal Procedure, 1973 which is a mandatory requirement to supply to the accused the copy of FIR/complaint/ Police report and other documents on which the prosecution relies upon his case. In case of Dharamveer v. CBI[(2008) DLT 289] the Delhi High court clarified that a hard disc is a document within the meaning of Section 3 of the Indian Evidence act, 1872 read with section 2(o) which defines data and 2(t) which defines electronic record of the Information Technology Act, 2000. These electronic devices if recovered from the crime scene or from the possession of the accused which is having some relevancy as to the proving or disproving fact-in-issue will automatically come in the category of documents within the meaning of section 207 of the Act 1973. And thus the law mandates the supply of such electronic evidence in duplicate form to the accused. The vulnerability of the electronic evidence as compared to other forms of evidence is that it is more prone to get tempered/doctored, perhaps that’s the reason that added layer of requirement is mandated when question comes to adduce electronic evidence in court of law. Section 65B which was inserted in the year 2000 is the law which talks about the admissibility of the electronic evidence. Section 65B (2) of the Act, 1872 requires twin conditions:

1. Integrity of the computer (device);
2. Integrity of the information produced.

Integrity of the computer means the device should be operated by lawful people in lawful manner applying lawful means, such device was in regular use of the transaction and was in working order.The integrity of the information produced confirms the veracity of the contents of the information(facts). In continuation thereof, section 22A of the Indian Evidence Act emphatically makes it crystal clear that the oral admission of the contents of any electronic records shall not be relevant unless the very probative value, genuineness of the alleged electronic record is in question.

It becomes necessary to produce section 79A of the Information technology Act, 2000 which gives a provision for examiner of electronic evidence. Whenever in a proceeding the court is unable to form an opinion relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the examiner of electronic evidence referred to in section 79A of the Information Technology Act, 2000 is a relevant fact.These are the occasions where the law requires proving or disproving of the very existence of the alleged electronic records or any assertion or denial as to its contents or probative worth. The best evidence rule in section 64 of the Indian Evidence Act, 1872 presupposes the idea that any document must be proved through primary evidence only. However, the law gives permit to adduce secondary evidence to proof a document in certain conditions. These conditions are crystallised under section 65 of the Act, 1872. Section 65 of the Indian Evidence Act, 1872 enumerate three pillars of the documentary evidence namely, the existence or non-existence, the very condition of the document and genuineness or correctness of its content or subject matter. Now, taking a clue from this, the very first thing in case of a documentary evidence once it is examined as to the fact of its existence, then only next question comes as to examining its content or condition etc. Section 65A of the Act, 1872 says that the contents of any electronic record is to be proved if the procedure and legal stipulations as to its requirements are adhered strictly within the meaning of section 65B of the Act, 1872. In other words, section 65A is a provision to examine the content of any electronic record and section 65B is the law which makes any electronic evidence as admissible piece of evidence in any judicial proceeding before the court.

Section 65B (4) of the Act, 1872 which actually mandates the production of the certificate in the prescribed format by the prescribed authority. The relevant questions which came before the courts while applying this provision were:

1. Whether the requirement of production of certificate under section 65B (4) of the Act, 1872 is one of the mandatory requirements whenever electronic evidence is produced in court in any judicial proceeding?
2. At what stage of a trial it should be adduced?
3. In cases, where the alleged electronic record is in possession of the accused how the prosecution is supposed to produce such certificate?
4. Which is the competent authority under section 65B (4) of the Act to issue such certificate?
5. What are the powers of the court trying a matter, if the person does not issue such certificate under his/her hand and seal of his authority?
6. Is section 65 B (4) the only mode to proof any electronic evidence under any judicial proceeding?
7. If the prosecution does not produce the certificate in support of the admissibility of an electronic evidence adduced by him and no objection is raised from the side of the accused at the trial stage, then the accused waives his right to object at any subsequent stage of the trial or at any appellate stage?

State of Delhi (NCT) v. Navjot Sandhu [(2005) 11 SCC 600] is the first judgment where soon after four years of the insertion of this section, the apex court got an opportunity to examine whether the requirement of certificate under section 65 B (4) of the Act, 1872 is mandatory in nature or just directory. In this case, the apex court upheld that where the facts appears genuine otherwise, then such requirement is not necessary. Section 65B (4) is just one of the methods of proving electronic evidence. Then in P.V. Anwar v. Bashir [(2014)10 SCC 473), a three judges bench judgment where the apex court said that such requirement of certificate is mandatory in nature. Thereafter in case of Sonu v. State of Hariyana [(2017) SCC online SC 765] wherein the court clarified that section 65(B) (4) certificate can be produced at any stage of the trial but before the judgment is pronounced. If such certificate is not produced by the prosecution and no objection is raised by the accused then the accused waives his right to object the same at any subsequent stage of the trial or even at any appellate or revision stage. Then, in case of Shafi Mohammad v. State of Himachal Pradesh[(2018) 2 SCC 801], a two judges bench judgment the apex court tried to carve out some exception to P.V. Anwar case. The court took note of the situation of those cases where the electronic evidence is in the possession of accused, then in such situation the requirement of section 65 (B) (4) is not mandatory. Thus Shafi case overruled PV Anwar case. The court went on saying that section 65 (A) and section 65 (B) is supplementary in nature and in appropriate cases the court may relax the procedure if the alleged electronic evidence is not in the possession of the prosecution.Then, in case of Tomaso Bruno v. State of Uttar Pradesh [(2015) 7SCC 178] which followed Navjot Sandhu case where in it was interpreted that there is no mandatory requirement under the law for the production of section 65 (B) (4) certificate and the court is having discretionary power to relax such requirement in the interest of justice. In Arjun Pandit Rao case, the court held that Tomaso Bruno and Navjot is not a good law.

In Tukaram Dhighole v. Manekrao [(2010) 4 SCC 329] said that the standard of proof as compared to applicable in proving/disproving of a documentary evidence other than electronic records should be stricter and well informed with all the prevalent techno-legal requisites.

And finally, in the case of Arjun Pandit Rao case the court again sat to explore the practical nuances of the applicability and feasibility of fulfilling section 65 (B) (4) requirement. In this case the court held that PV Anwar is a good law and requirement of section 65A and section 65B is mandatory in nature and cannot be diluted. In cases, where the electronic evidence is in possession of the accused, then in spite of diluting the procedural requirements of section 65(B)(4) of the Act, appropriate orders/directions may be passed against the ones having possession of the alleged electronic records to produce the same. In Arjun Pandit Rao, the court got an opportunity to re-look the entire business of section 65(B) (4). In PV Anwar case,  the apex court made it explicitly clear that section 65A and 65B is a self-contained and complete code in itself when the question comes as to the admissibility of any electronic record in any court proceeding. The facts as to the existence of any electronic evidence and the veracity, truthfulness, genuineness of its content are things of paramount relevance to be adjudicated upon by the courts during the course of any inquiry, trial or otherwise.

These digital tools too are not infallible, they do occasionally malfunction, Software systems often have “bugs”, and there are possible chances that such electronic records may easily be altered. Now a days the concept of virus attacking computer applications is commonly heard. The integrity of the computer device or the information produced from such device is the core and penumbra which passes the test of admissibility of any electronic evidence. Therefore, if such computer or device is not functioning properly as it was working during normal course of transaction/business, there is no point in dragging section 65(B) of the Act, 1872. This provision is just one method to prove the contents of any electronic record, resort may be taken to prove the contents of such electronic records by other methods and modalities.

Another crucial aspect of section 65 (B) (4) of the Act, 1872 which causes confusion as to the fact which is the competent authority having power to issue such certificate. The law as enumerated under this section simply mentions that the person who occupy the responsible official position in relation to the operation of the relevant device or computer or the management of the relevant activities is having the competency to issue such certificate. Many times, it is observed that such person is reluctant to issue such certificate or even if he issues it, the veracity of its content is hardly bothered.The whole jurisprudence behind the mandatory requirement of section 65(B) (4) certificate is to sanctify the secondary evidence of electronic or digital in nature.

The party which relies upon electronic evidence and the situation where the alleged electronic evidence is not in his possession, trial court is having powers to order under the following provisions:

1. Under section 91 (summon to produce document and other thing) and 349(imprisonment and committal of a person refusing to answer or produce document) of the Code of Criminal Procedure, 1973;
2. Under section 165 (judges power to put questions or produce documents) of the Indian Evidence Act, 1872;
3. Under order XVI rule 6 (summon to produce document) of the Code of Civil Procedure, 1908.

Under Section 65-B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

 (b) The certificate must describe the manner in which the electronic record was produced;

 (c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B (2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of such relevant device or the computer.

In Vikram Singh v. State of Punjab [(2017) 8 SCC 518] the three judges bench of the Apex court made it quite clear that where the alleged electronic record is produced itself before the court for inspection, being primary evidence in nature it does not warrant the compliance of procedural nuances of section 65(B) of the Act, 1872.

There are many statutes which relaxes the procedural nuances of laws in some proceedings, like matrimonial matters, arbitration, conciliation, mediation, consumer complaints and commercial disputes.

The law relating to the ADR process is Arbitration & Conciliation, Act, 1996 which does not give any specific clarification as to the requirement of any certificate in support of adducing any electronic records. Section 19(1) of the Act, 1996 clearly mentions that parties are not bound to follow the Indian Evidence Act, 1872. So the natural corollary of the fact is that the mandatory requirement of section 65 (B) (4) of the Act, 1872 is not applicable in arbitration proceedings. However, if the parties to the agreement desire so they may incorporate such requirement in their rules of procedure. As a matter of practise the growing relevance of digital footprints in ADR process cannot be belittled. Hefty claims and counter claims of the parties to agreement is often seen to rely on electronic records in their possession. At the same time, the forgery or the issue of counterfeiting/tampering with such electronic records is something so substantial.

Then for expeditious disposal of commercial disputes of the specified value, there is another law in domain, i.e. the Commercial Courts Act, 2015. It may be made clear at the outset that it is merely a forum legislation rather than any subject-matter legislation. This law provides forum of commercial courts established of different strata to adjudicate upon any dispute which is commercial in nature and of specified value. The terms commercial dispute and specified value is defined under section 2(1) (c) & (i) of the Commercial Courts Act, 2015. To incorporate relevant procedural aspects, the Code of Civil Procedure, 1908 is amended accordingly.

When the issue arises of disclosure, discovery and inspection of documents including electronic records for the matter pending before any commercial court, order XI rule 6 of the code of Civil Procedure, 1908 plays a pivotal role in recognising the procedural nuances as to the admissibility, disclosure, inspection and discovery of the alleged electronic record. In this connection, there is an important provision incorporated under order XI, rule 6(3) read with rule 6(5) of the Code of Civil Procedure, 1908. Rule 6(5) of the order XI says that the dealing commercial court may give directions as to the admissibility of any electronic evidence at any stage of the proceeding. This raises substantial question of law:

1.  Whether rule 6(5) of order XI CPC dilutes the mandatory requirement of section 65 (B) (4) certificate in matters dealt by commercial courts?
2. What may be the plausible directions which may be given by the commercial courts while determining the admissibility of any electronic record in proceedings before them?
3. Whether these directions will be inclusive of the mandatory requirement of section 65 (B) (4) certificate or not in deciding the admissibility of any electronic record?

Then the arena of the consumerism is also not untouched from the digitalization of market and economy. Recently, the changes made under the newly enacted Consumer Protection Act, 2019 and the Rules, 2020 made thereunder are well equipped to recognize digital and electronic consumerism. The definition of e-commerce under section 2(16) of the Act, 2019 incorporates the term digital products along with good and services. Therefore, critical understanding is desirable as to the digital and technological implications when it comes to determine whether there is any defect/deficiency in such digital products. The appreciation & evaluation of evidences pertaining to the subject is very much necessary.

Conclusion: Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. Therefore, the courts are supposed to be more cautious and careful while coming across any electronic records in a case. Where a criminal trial proceeds and prosecution entirely relies upon his case over circumstantial evidence solely, the role of digital footprints in that particular case cannot be negated. This becomes more important because India is having an adversarial system of criminal justice delivery mechanism, where the cardinal canons of presumption of innocence, standard of proof without leaving iota of doubt as to accusation actually necessitates the urgent and timely jurisprudence on digital footprints on this law.

Author

Bharat Bhushan Pandey
Deputy Legal Advisor,
Legal Department
ONGC Ltd.