Supreme Court clarifies on the requirement of a certificate under Section 65B of the Evidence Act, 1872

The conflicted interpretation of Section 65B of the Indian Evidence Act, 1872 (Act) by two judgments of the Supreme Court was referred to a three judge Bench of the Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal And Ors.[2020SCCOnLineSC571]. The two Judge Bench decision in Shafhi Mohammad v. State of Himachal Pradesh [(2018)2SCC801] (Shafhi) required reconsideration in view of the three Judge Bench judgment in Anvar P.V. v. P.K. Basheer & Ors. [(2014)10SCC473] (Anvar).

Facts:

The material facts of the case in brief are that CDs were produced without the written certificate as required under Section 65B(4), which the High Court admitted in evidence while holding that there was “substantive compliance” of the requirement under Section 65B(4) by way of oral evidence in cross-examination. It is also pertinent to mention that all efforts to obtain the certificate were in vain.

Contentions:

On behalf of the appellant it was argued that Shafhi and judgments following it being contrary to the larger bench judgment in Anvar, should be held as not having laid down the correct law that whenever the interest of justice required, the requirement of a certificate could be done away with under Section 65B(4). It was contended that the theory of “substantial compliance” with the provisions of Section was unsustainable in law.

On behalf of the respondent it was argued that Section 65B was a procedural provision, and it could not be the law that even where a certificate is impossible to get, the absence of such certificate should result in the denial of crucial evidence which would point at the truth or falsehood of a given set of facts.

It was argued that Anvar could be good law only in situations where it was possible for the party to produce the requisite certificate.

On behalf of the interveners it was argued that Anvar required to be clarified to the extent that Sections 65A and 65B being a complete code as to admissibility of electronic records, the “baggage” of primary and secondary evidence contained in Sections 62 and 65 of the Act should not at all be adverted to for admissibility of information contained in electronic records.

Decision:

The Supreme Court carried out an in-depth analysis of the law governing electronic records in India and UK wherefrom Section 65B bears its genesis and held inter alia as follows:

Comment:

The Supreme Court has cleared the air by settling the much-conflicted position on the interpretation of Section 65B. Though it may appear that the Court has strictly interpreted the provision which may put litigants in jeopardy especially when the party relying upon the electronic evidence is unable to procure the certificate, the judgement clarifies that if the party has explored all options available under law and despite such efforts is unable to procure the certificate, the Court may excuse such requirement. In fact, in this very case, the Court admitted electronic evidence without the certificate. Further, in view of the concurring opinion by Justice Ramasubramanian, it may be expected that the legislature amends the existing laws so that the procedure for admissibility of electronic records becomes easier.

-          Vivek Jhunjhunwala (Partner), Shreya Singh (Senior Associate) and Pratik Shanu (Senior Associate)

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