What somewhat muddies the already murky legal waters of electronic evidence is the latest decision of the Supreme Court. The Supreme Court in Shafhi Mohammad v. State of HP (Date of Decision : 30.01.2018)  has held that : 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. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) (Sic : Section 65B(4) is not always mandatory. 

The portion in red may be contrary to the decision of the Hon’ble Supreme Court in PV Anvar  v. Basheer (2014). To recapitulate, in PV Anvar, the SC had held:

 

• Electronic record produced for the inspection of the court is documentary evidence under Section 3 of the IEA.
• Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B, which is a complete code on that subject. 
• Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.
• It may be noted that the section starts with a non obstante clause. Thus, 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 shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, and only thereafter, further proof or production of the original shall be dispensed with.
• The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

The decision under discussion (Shafhi Mohammad) insofar as it permits reference to traditional secondary principles under Section 65 IEA etc, may not be compatible or reconcilable with the clear ratio of PV Anvar (supra). The decision does mention PV Anvar (supra) – however, it merely pays a lip service to the decision and does not even make a pretence of distinguishing itself from it. The discussion on PV Anvar in Shafhi (supra) is as follows: 

“6. We may, however, also refer to judgment of this Court in Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three-Judge Bench. In the said judgment in para 24 it was observed that electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section 65B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandh (supra) that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act.

7. Though in view of Three-Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B(h).

Further, Shafhi also raises eye-brows for the following observations:

8. Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. Primary evidence is the document produced before Court and the expression “document” is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Contrast this with what the three judges bench in PV Anvar (supra) said; which appears to be exactly the opposite:

Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

It goes without saying that Shafhi (supra) being a two judge bench decision could not have taken a view ostensibly against PV Anvar. Further, Shafhi seeks to find a way around P V Anvar’s observations by reliance on Tomaso Bruno (2015), however that reliance is also of doubtful legality since Tomaso Bruno (2015), on a meaningful reading, does not appear to advance the conclusion that resort may be had to Section 65 IEA, in case of impossibility of compliance with Section 65B of the Evidence Act.  Barring this tenuous legal reasoning, it must be conceded that the decision seeks to achieve a very practical objective and overcome a real problem with the existing legal regime on admissibility of electronic evidence, which is articulated in para 2 of the judgment:

2. An apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect that if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities. It was submitted that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate could not be mandatory.

However, pragmatism, howsoever well intentioned, has to be expressed within the framework of existing statutory provisions and law on the subject and not ad-hoc and unexplained. All in all, the decision, though practically needed, leaves a lot to be desired as far as legal reasoning is concerned. We’d try to resolve this conundrum in greater details in a more detailed post in the near future. So stay tuned! For now, this decision may be read with a generous pinch of salt, for the foregoing reasons.