It was in Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors5, the Apex Court held that it is the duty of the prosecution to prove that electronic record is not tampered with, while in civil cases the proof of non- tampering be given by the party producing such audio- visual recording. Also, in Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri6 it was held that audio- visual recording cannot be outrightly negated because the scenes so captured by the audio video recording are the recorded at the very time the said alleged instance took place.
In Ram Singh versus Ram Singh7, the Apex Court issued various guidelines on the admissibility of electronic evidence. These were:
As regards the evidence recorded on a tape Recorder or other mechanical process the preponderance of authorities is in favour of the admissibility of the statements subject to certain safeguards viz.,
(1) The voice of the speaker must be identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The voice of the speaker should be audible and not distorted by other sounds or disturbances.
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out.
(5) The statement must be relevant according to the rules of evidence.
(6) The recorded cassette must be carefully sealed and kept in safe custody.
Later in P. Gopalkrishnan @ Dileep vs The State Of Kerala8 , the clash between rights under Article 21 arose, where a audio video recording of a rape was not given by the victim to the defence. The defence demanded the recording as forming part of a document, while the prosecution denied the recording as it would lead to violation of right to privacy under Article 21 of the Constitution. Thus, on side was the right to fair trial under Article 21 and on the other side was the right to privacy under Article 21. The Apex Court held that the victim right of privacy associated the right of the society and thus denied the recording to the prosecution. In State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru 20059 (Parliamentary attack case), Apex Court held that if primary evidence of call recording cannot be produced, secondary evidence of it can be given. This, case was overruled in Anwar versus Bashir 2014 SC. In order to admit an electronic recording it must be proved that it was in proper custody and has not been tampered with. Thus, it held that a certificate under Section 65 (B)(4) is mandatory.
Later, in Shafi Mohammad versus State of Himachal Pradesh10 , it was held that the certificate under Section 65 (B)(4) is not mandatory, as its production in every case is not possible. Thus. Demand of a certificate would be on case to case basis. Finally, in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal11 it was fnally decided by the Supreme Court that:
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:
1. The certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record and overruled the judgment passed in Shafhi. Further, the judgment in Tomaso Bruno v. State of U.P. [(2015)7SCC178] was declared per incuriam and the judgment in K. Ramajyam v. Inspector of Police [(2016)Crl.LJ1542] passed by Madras High Court was also overruled.
2. Section 65B(1) couched in a non-obstante clause clarifies that admissibility and proof of information contained in an electronic record must follow Section 65B, being a special provision and Sections 62 to 65 are irrelevant with respect to such electronic records.
3. Electronic records may be the original information contained in the "computer" itself and copies made therefrom, such "original" being primary evidence while the copies being secondary evidence. Therefore, the certificate in Section 65B(4) is unnecessary if the original document itself is produced. Such production of the original may be by way of the owner of a laptop, tablet or a mobile phone 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. Such proof however cannot be adduced if the device cannot be physically brought to Court [in such case the only means of proving the information will be in accordance with Section 65B(1) read with Section 65B(4)]. Accordingly, the Court clarified that the last sentence in paragraph 24 of Anvar which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act...", may more appropriately be read without the words "under Section 62 of the Evidence Act".
4. The difficulty in obtaining a document can be overcome by various statutory provisions:
(i) Section 165 of the Act empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts;
(ii) Order XVI of the Civil Procedure Code, 1908 deals with 'Summoning and Attendance of Witnesses' and the Court can issue orders for the production of documents;
(iii) Sections 91 and 349 of the Code of Criminal Procedure, 1973.
5. In a situation where the certificate has been applied for and the person or authority does not comply with such request, parties can apply to the Court to direct the person to produce the certificate. Even if pursuant to the directions of the Court the certificate cannot be obtained, the alleged disobedience of the law is excused.
6. Section 65B is silent as regards when the certificate is to be produced. Though generally the certificate must accompany the electronic record when the same is produced in evidence, though there is some level of discretion that may be exercised depending on the facts of each case. Insofar as criminal trials are concerned, though generally documents are to be filed before commencement of the trial, the Court may exercise discretion and allow production later if no prejudice is caused.
General directions were also issued to cellular companies and internet service providers to maintain CDRs and other relevant records as per law and it has been directed that appropriate rules and directions should be framed in exercise of the Information Technology Act, 2000.
Now, in this background, let us examine what the present Bhartiya Sakshya Adhiniyam, 2023 stipulates about electronic evidence. Section 61, 62 and 63 of Sakshya Bill inter alia deal with electronic evidence. Surprisingly, Section 61 clearly restores the position of Navjot Sandhu by holding the electronic evidence at par with documentary evidence and goes on to say that “Nothing in this act can be used to deny the admissibility of electronic record, and the electronic record shall have same legal effect, validity and enforceability as paper record.
Note the opening word, “Nothing..” which makes this section supersede rest all.
Section 62 further fortifies this position by saying that the contents of electronic record may be proved in accordance with provisions of section 59 [the section that deals with documentary evidence. Now comes a major problem and beginning of a conundrum. Section 63 lays down the position as laid down in Arjun Panditrao. [which is diametrically opposite to the one laid down Navjot Sandhu and reinstated in Section 61. Section 63 is reincarnation of Section 65B. It is in verbatim replica of S.65B. Therefore, even the non obstante clause makes its strong appearance in the opening line of section 63. It begins by saying ‘Notwithstanding anything contained in this act....’
Therefore, this non obstante clause overrides all the earlier sections, including section 61, and 62. Therefore, this apparently indicates that one must resort only to section 63 whilst dealing with electronic record. So one no longer can equate the electron evidence with the documentary evidence as Section 61 attempts to do. Also, owing to the non-obstante clause, this section has the potential of again being interpreted by the Supreme Court as overriding all other provisions as was done in the judgement of Arjun Panditrao.
In fact, this time the conflict between the two sections would be much more violent and severe. In the earlier legislation, there was nothing to be pitted against the non obstante clause of section 65B. However, in its present Avatar, this non-obstance clause has a worthy opponent in the form of equally strong opening lines of section 61 which say “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic record on the ground that it is an electronic record and such record shall have the same legal effects, validity and enforceability as paper records’. The word ‘nothing’ has the ability to annul the effect of non obstante clause appearing in section 63 and vice versa.
In the clash of titans between notwithstanding and nothing, which one will prevail, is the moot question. In the earlier legislation, at least there was a guiding light in the form of section 65A which categorically paved the way for proving the electronic evidence in accordance with section 65B. It said that the contents of electronic record may be proved in accordance with section 65B. This section drew a line of division, though subtle, between the regime of documentary evidence and that of electronic evidence.
However, section 61 is exactly contrary which instead of drawing the line, imports the sections dealing with documentary evidence in the regime of electronic evidence and mixes up both the jurisprudences. Section 61, standing alone, could have sorted the problems. Or Section 63 alone would have redressed the issues. But both holding the field is going to cause a worst ever fight.
In the coming time, the battle between section 61 and 63 is going to rule the court rooms but with much more chaos and confusion. Worst of all, this is going to breed uncertainty again.
1. AIR 1956 P H 173.
2. AIR 1964 SC 72.
3. AIR 1968 SC 147.
4. 1973 AIR 157.
5. 975 AIR 1778
6. 1971 AIR 1162
7. 1985 SCR Supp 399
8. AIR 2020 SC 1.
9. AIR 2005 SC 3820.
10. SLP(Crl.) No. 2302 of 2017.
11. (2020) 3SCC 216.