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Arjun Panditrao Decision- The Time To Revisit

S.65B Of Indian Evidence Act: A Scienti c
Legal Analysis
Ayan Bhattacherjee & Indrajit Adhikari 8 Sep 2020 5:52 PM

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"Every new time will give its law"

- Maxim Gorky, The New Lawyer's Wit and Wisdom

In its quest to emplace the judicial discipline relating to admissibility of any electronic

record and to obviate the controversies created by the previous judgments as to

whether certi cate under Section of the 65B of the Indian Evidence Act, 1872 ('the

said Act') is a condition precedent for admissibility of any Secondary electronic record

and at what stage the same may be produced; a Three Member Bench of the Hon'ble

Supreme Court of India, in its latest referendum judgment namely, Arjun Panditrao

Khotkar Vs. Kailash Kushanrao Gorantyal & Ors, decided on July 14, 2020 has hand
down, inter alia, as follows:-

Also Read - Right Of Residence Of Daughter-In-Law In Wake Of The New Judgment

By The Supreme Court

a) Anvar P.V. v. P.K. Basheer & Ors [(2014) 10 SCC 473] is the authoritative law of the

land on Section 65B of the said Act and therefore certi cate required under Section
65B(4) is a condition precedent to the admissibility of any Secondary electronic

record;

b) Earlier Three Judge Bench decision of Tomaso Bruno v. State of U.P. [(2015) 7 SCC

178] on Section 65B of the said Act, having not considered Anvar P.V. (supra) being
per incuriam, does not lay down the law correctly;

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Begum Aizaz Rasul

c) Earlier Division Bench decision rendered in Shafhi Mohammad v. State of Himachal

Pradesh, reported in (2018) 2 SCC 801 and the judgment dated 03.04.2018 reported
as (2018) 5 SCC 311 do not lay down the law correctly and are therefore overruled;

d) The decision of Madras High Court in K. Ramajyam v. Inspector of Police [(2016)

Crl. LJ 1542], which states that evidence aliunde can be given through a person who
was in-charge of a computer device in the place of the requisite certi cate under

Section 65B(4) of the said Act is also an incorrect statement of the law and is,

accordingly, overruled.

Also Read - Child Marriage And Muslim Personal Law In India

e) No certi cate under Section 65B(4) of the said Act is required if the original

document (electronic record) itself is produced and the same can be done by the

owner of a laptop, computer, computer tablet or even a mobile phone, by stepping into

the witness box and proving that the concerned device, on which the original

information is rst stored, is owned and/or operated by him;

Also Read - Does The Traceability Requirement Meet The Puttaswamy Test?

f) In cases where the computer happens to be a part of a computer system or

computer network and it becomes impossible to physically bring such system or

network to the Court, then the only means of providing information contained in such

electronic record can be in accordance with Section 65B(1), together with the requisite

certi cate under Section 65B(4).

Judgments Considered in Arjun Panditrao (supra):

Before moving further, let us rst understand as to what were the ratio of the earlier

judgments relating to Section 65B vis a vis electronic evidence, which have been dealt

with in Arjun Panditrao (supra):

Judgment Citation Forum Ratio Followed/

Overruled

Anvar P.V. (2014) Supreme Section 65A & 65B is a Followed

10 SCC Court complete Code. A certi cate

v.
473 required under Section
(3
P.K. Basheer 65B(4) is a condition
Judges)
& Ors precedent to the

admissibility of any

Secondary electronic

record. If an electronic

record is used as primary

evidence under Section 62

of the said Act, the same is

admissible in evidence,

without compliance with the

conditions in Section 65-B

of the said Act.

Tomaso (2015) Supreme Secondary evidence of the Overruled

Bruno 7 SCC Court contents of a document can

178 also be led under Section 65

v. (3
of the said Act to make
Judges)
State of U.P. CCTV footage admissible

Paras Jain 2015 Rajasthan Certi cate as required under Given

v. SCC High Section 65-B can be Concurrence

OnLine Court produced subsequently in

State of
Raj any circumstances if the
Rajasthan
8331 same was not procured

alongwith the electronic

record and not produced in

the Court with the charge-

sheet or produced but not in

proper format. It is curable

irregularity.

Kundan 2015 Delhi Requisite certi cate need Given

Singh SCC High not necessarily be given at Concurrence

OnLine Court the time of tendering of

v.
Del evidence but could be at a
State 13647 subsequent stage of the

proceedings.

K.Ramajyam (2016) Madras Evidence aliunde can be Overruled

Crl. LJ High given through a person who

v.
1542 Court was in-charge of a computer

device in the place of the

Inspector of requisite certi cate under

Police Section 65B(4) of the said

Act

Vikram (2017) Supreme Where primary evidence in Followed

Singh & Anr. 8 SCC Court electronic form has been

518 produced, no certi cate

v. (3
under Section 65B would be
Judges)
State of necessary
Punjab

Shafhi (2018) Supreme A party who is not in Overruled

Mohammad 2 SCC Court possession of device from

v. 801 which the document is

(2
produced, cannot be
State of HP Judges)
required to produce

certi cate under Section 65-

B(4) of the said Act. The

applicability of requirement

of certi cate being

procedural can be relaxed

by the court wherever

interest of justice so

justi es.

State of (2019) Supreme The need for production of a Followed

Karnataka 7 SCC Court certi cate under Section 65-

515 B(4) would arise when the

v.
electronic record is sought
M.R. (2 to be produced in evidence

Hiremath Judges) at the trial. It is at that stage

that the necessity of the

production of the certi cate

would arise.

Positivity of Arjun Panditrao

No doubt Arjun Panditrao (supra) is an asseveration of the Apex Court on Section 65B

of the said Act setting in quietus all the controversies in law relating to production of

certi cate under Section 65B in respect of an electronic record. The judgment is

imbibed with the erudite, analytical mind, expertise, interpretative skills of the Hon'ble

Judges. In giving shape to the judgment, the Apex Court has not only thoroughly

scrutinized and analyzed the relevant provisions of the Information Technology Act,

2002 as amended by 2008 Act; Code of Criminal Procedure, 1973; Civil Procedure

Code, 1908; the said Act but also has made hair spitting survey of the origin of Section

65B and dealt with relevant branches of law relating to electronic evidence prevailing

in UK, USA and Canada. Some of the ingenious measures giving strength and

positivity to the judgment are as follows:-

A. Paving the way for Trial Courts to secure 65B certi cate:

Through this judgment, the Apex Court for the rst time has devised a pragmatic

mechanism for the Trial Courts to secure Certi cate under Section 65B in respect of

any Secondary electronic record from the person(s) in control of such original

electronic record by taking resort to Sections 91/ 311/173(8)/231 of the Code of

Criminal Procedure, 1973 ('Cr PC') and Order XVI of the Civil Procedure Code, 1908 ('C

P C') and Section 165 of the said Act.

B. Utilization of Legal Maxims of Equity in balancing the rights of parties and powers

of Courts while securing certi cate:

This judgment has also semantically analyzed and applied two well settled Maxims of

Equity, namely, i) actus curiae neminem gravabit (an act of the Court shall prejudice no

man) and ii) lex non cogit ad impossibilia (the law does not compel a man to do that

which he cannot possibly perform) to set forth a range for the Trial Courts to exercise

their powers in securing certi cate under Section 65B in relation to any Secondary

electronic record. The object was to create a balance between the rights of parties

and the powers of the Court while procuring such certi cate.

C. Directions for maintenance and management of CDRs:

This judgment to a great extent, has referred to and discussed various Clauses and

License Conditions of the Department of Telecommunications and issued general

directions upon Cellular Companies and Internet Service Providers to maintain CDRs

and other relevant records for the concerned period (in tune with Section 39 of the

said Act) in a segregated and secure manner if a particular CDR or other record is

seized during investigation in the said period. Such Directions are made applicable for

criminal trials, till issuance of appropriate directions under applicable licenses, or

under Section 67C of the Information Technology Act, 2002. The judgment has also

laid down a process for the concerned parties to summon such CDRs and other

records at the stage of defence evidence or during cross-examination of a particular

witness.

D. Underscoring statutory recognition of Draft Rules for Reception, Retrieval,

Authentication and Preservation of Electronic Records :

This judgment has, in extenso, delved into the Conference of the Chief Justices of the

High Courts, chaired by the Chief Justice of India held on 23 April 2016 followed by

formation of a ve-Judge Committee constituted on 28 July, 2018 and Final Report of

the said Committee given in November 2018 containing Draft Rules for the Reception,

Retrieval, Authentication and Preservation of Electronic Records and has emphasized

for giving them statutory force, to guide Courts with regard to preservation and

retrieval of electronic evidence.

Some thoughts:

India is presently holding 3rd position in the world in terms of highest rate of

cybercrime (as per a recent Report released by USA's Internet Crime Complaint Centre

of FBI) and second largest online market and internet user in the world, ranked only

behind China (as per Report dated July 07, 2020 published by Statista). As students of

law and giving highest reverence to the judgment, may we now put in our thoughts

over the probable gray areas of the judgment and their implications:

A. Whether S. 65B is a complete Code in itself:

The entire foundation of Arjun Panditrao (supra) and Anvar P.V. (supra) is based on the

supposition that "The very caption of Section 65-A of the Evidence Act, read with

Sections 59 and 65-B is su cient to hold that the special provisions on evidence

relating to electronic record shall be governed by the procedure prescribed under

Section 65-B 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."

Let us analyze how far this proposition is true and how far Section 65B is a complete

Code guiding electronic evidence.

i) Section 65B itself contemplate "electronic record" as "document" and then make it

admissible:

If we follow the plain language of Section 65B, then at rst, it considers 'any

information contained in an electronic record' (in whatever format) produced by a

computer as 'document' if conditions mentioned in Sub Secs (2), (3) are satis ed. If
the Legislatures wanted to assign a different class to 'electronic record', then there

was no requirement for deeming such 'information contained in electronic record' as

'document' and thereafter admit it into evidence on ful llment of certain conditions.

So, the intention of legislature might be to contemplate 'any information contained in

electronic record' as a species of the genre 'document'.

ii) Doctrine of "intelligible differentia" vis a vis Section 65B:

If we consider Section 65B of the said Act to be a complete Code within itself, then it

must travel through the test of doctrine of "intelligible differentia" deeming "electronic

record" and "document" as two distinct and different classes. To pass that test,

Section 65B must exhaustively deal with all kinds of "electronic record" – primary and

secondary as well as their mode and manner of admissibility, relevancy and proof like

Sections 61 to 73 achieve in relation to "document". But Section 65B merely lays down

a Rule of admissibility of electronic record. This Section also cannot independently

deal with all kinds of eventualities in relation to electronic record unlike Sections 61 to

73 and other provisions of the said Act do in relation to 'documentary evidence'. It also

fails to regulate the 'source' and 'authenticity' of any electronic record, which are the

primary criterion for proving an electronic record. Section 65B further fails to de ne or

deal with 'public electronic record' unlike Sections 63, 74, 76, 77 and 78 of the said

Act. The latter provision provisions deal with "public document", quite

comprehensively.

iii) Whether Section 65B is Alma Mater regarding admissibility of all electronic

record:

Section 65B even cannot properly deal with admissibility of all kind of electronic

record. An Illustration may make this clear.

A person, who is interested to obtain his digital signature to authenticate his

electronic records, can easily apply for the same before any licensed Certifying
Authority (generally Third Party Vendors), who has been granted license by the

Ministry of Corporate Affairs, Govt. of India to issue a Digital Signature Certi cate

(DSC) under Section 24 of the Information Technology Act, 2000. Such Certifying

Authority after completion of procedural formalities, grants such DSC (containing the

Public Key that can be used to validate the Private Key that is associated with a digital

signature) for a limited period to the applicant. In simple, DSC is digital equivalent (in

electronic format) of physical or paper certi cate. Such DSC can be presented

electronically to prove one's identity, to access information or services on the internet

or to sign certain documents electronically. This DSC is provided to the

applicant/signature holder in PEN Drive and every time the owner has to give access

to the Pen Drive to use his digital signature in any electronic record. This Pen Drive is

the primary electronic evidence and as per Arjun Panditrao (supra) or Section 65-B,

only production of that original Pen Drive before the Court should su ce to prove the

authenticity of the signature of that person and he can prove the same by examining

himself on dock. If Section 65B is the sole Section dealing with its admissibility, then

Section 73A would not have been incorporated in the said Act to deal with the manner

of proof of veri cation of such DSC. To prove the fact that the digital signature is that

of the person by whom it purports to have been a xed, Section 65A has to give a way

to Section 73A. If the production of DSC by the signature owner under Section 65B

would have been nal, then Court could not be vested with the power to direct the

Controller or Certifying Authority to produce the DSC or direct any other person to

apply the public key listed in DSC to verify the digital signature purported to have been

a xed by that person. Thus Section 65B alone even cannot regulate the admissibility

of all kinds of electronic record. Section 73A is a clear example of it.

B. Relevant provisions regarding Electronic Record:

In the thought process of making of the judgment, only Sections 3, 22A, 45A, 59, 65A,

65B of the said Act and various relevant Sections of the Information Technology Act,
2000 have been considered and analysed by the Apex Court. However many a

Sections of the said Act dealing with electronic records including Sections 17, 34, 39,

47A, 67A, 73A, 81A, 85A, 85B, 85C, 88A, 90A, 131 have not at all been taken into

consideration. If those Sections, which were inserted in the said Act by way of

amendment (after coming into effect of the Information Technology Act) were

considered and analyzed in the judgment, then probably the intention of the

Legislature would have been more clearer. A conjoint reading of these Sections [not

considered by Arjun Panditrao (supra)] may probably throw light upon us to come to

the conclusion that the Legislatures had enacted these Sections in order to breach the

gap between "document" and "electronic record" with regard to their relevancy, how

much of its contents come into the arena of proof, mode and manner of proof,

presumptive value etc. If Section 65B would have been a complete Code governing

electronic records then these Sections would not have been incorporated by the

Legislature. It may give us an impression that Section 65B not in isolation but together

with these Sections, can form a Code to govern "electronic record".

C. Can Section 65B operate independently barring Section 63/65 to deal with

Secondary Electronic Record:

Secondary evidence of an electronic record covers a large eld in our modern era.

With the aid of advanced technology, we can very easily create, copy, store and

preserve authenticated copies of any electronic record in various formats. Today,

most of the original electronic records are stored in Cloud Storage like Google Drive,

One Drive etc. (even user data in various social medias like Facebook, Twitter etc are

stored in Cloud) and the servers of those Cloud Storage are kept in different countries

to protect data from physical damage. In case any such electronic data, stored in

Cloud, is required to be produced as evidence, then as per Arjun Panditrao (supra)

either original hard drive stored in Cloud Device has to be produced (which is quite

di cult if not impossible) or any authenticated copy of the data can be produced as
evidence backed by certi cate under Section 65B. Arjun Panditrao (supra) has only

made it clear that the original computer or device wherein the electronic record is

created or stored is primary evidence. But as neither Section 65B nor Arjun Panditrao

(supra) de nes or lays down any yardstick for 'Secondary electronic record', these

huge class of copies are left into an uncertain arena of admissibility. So to decide as

to whether any electronic record is primary or secondary, we have to take resort to

Section 63 of the said Act. It clearly re ects that the Legislatures have intentionally

not de ned and explained "Secondary electronic record" thinking that Sections 63 and

65 are already there to take good care of them in relation to electronic evidence. So

again without taking the help of Sections 63 and 65 of the said Act, we can not

possibly apply Section 65B to prove any electronic record as Secondary evidence.

D. Whether Sonu@Amar v. State of Haryana [AIR 2017 SC 3441] has been considered

in proper perspective in Arjun Panditrao(supra):

Following Anvar P.V. (supra) the Apex Court in Arjun Panditrao (supra) has held that

pleas regarding admissibility of electronic records on grounds of non production of

certi cate under Section 65-B, cannot be entertained before an Appellate Court, if an

objection had not been given in Trial Court. According to Apex Court the mode or

method of proof is procedural and objections, if not taken at trial, cannot be permitted

at appellate stage. This decision was based on the nding that the requirements of

Section 65B merely pertain to issues of mode of proof and not inherent admissibility

of the electronic record. But Arjun Panditrao (supra) has held that mandatory

certi cate under Section 65B is a condition precedent and goes to the very root of

admissibility of any Secondary electronic evidence. Since Arjun Panditrao (supra) has

not overruled Sonu alias Amar (supra), the ratio of that judgment will follow. As Arjun

Panditrao (supra) has made it clear that it is the duty of the Trial Court to ensure

production of certi cate in some cases, the adversary would be precluded in raising
their objection in those cases, creating serious prejudice to their rights in appellate

stage.

Now, if in any given case, in spite of best of endeavour of the parties as well as Court,

if the requisite certi cate under Section 65B cannot be produced, then by virtue of

Arjun Panditrao (supra) such certi cate would be excused and the Secondary

electronic record would probably be admitted in evidence without any certi cate. So

the challenge of admissibility in respect of that Secondary electronic record would

never be possible to be raised by the adversary party even in appellate stage.

E. Uncertainty of Public Electronic Record:

In modern days, most of the public documents and public records like records of

Registrar of Companies, records of Income Tax and Sales Tax Department, records of

Postal Authority, orders of Courts of Law and Tribunals etc. are maintained in

electronic form in public domain. If a person having right to inspect such public

documents and obtain a certi ed copy of such documents in physical forms, then he

cannot be denied such right of inspection and get copies of such public documents

available in electronic form as well. In fact, advancement of science and technology

has ensured these rights of inspection at our doorsteps and made it easy to get

copies of such public documents in many sectors by adhering various authenticated

means but if our Laws (whether Legislated or Judge-Made) do not provide an easy

and simple method to admit these copies of public documents as electronic evidence

in Courts or Tribunals, then such Laws will fail to cope up with the need of society and

will be fruitless. But neither Section 65-B nor the decisions of Arjun Panditrao(supra)

or Anvar P.V.(supra) do ensure such burning need of the society and to withstand the

test of time.

F. What if Certi cate u/s 65B is false:

Section 65B does not provide any checks and balance to ensure genuinity of a

certi cate. Anybody pretending himself to be the 'person occupying a responsible

position in relation to operation of the relevant device or the management of the

relevant activities' can actually sign and execute such certi cate. There is no pointer

prescribed in Section 65B to connect the electronic record and the originator of the

electronic record. There is also nothing in Section 65B(4) to ensure the source and

authenticity of the Secondary electronic record.

Even otherwise, since a certi cate under Section 65-B is only in the form of a

declaration and not in the form of an a davit or a rmation, if any person falsely

makes such declaration without actually adhering to the procedures contained in the

letters of Section 65B(2) or (3) of (4), Court will be obliged to accept such certi cate

as true and admit any Secondary electronic record as evidence on the strength of

such certi cate. Since furnishing of a false certi cate is not punishable offence,

anyone can take the Court in a ride with him on the basis of such false certi cate.

G. Section 91 Cr PC vis a vis An Accused vis a vis Section 131 of Evidence Act: A

Conundrum

The Hon'ble Supreme Court in Anjun Panditrao (supra) has discussed in details about

application of Section 91 of Cr P C for procurement of the certi cate from a third

person in case the same was not led with the FIR/complaint. Though the provision

under Section 91 Cr P C can de nitely be invoked in such a situation, however it

cannot be lost sight of the fact that in a given case 'electronic record' and the

computer in question may be in the possession and/or with the custody of an

accused person. In such a contingency, the provision under Section 91 Cr P C will have

no application inasmuch as an accused person cannot be compelled to disclose

documents which are incriminatory and based on his personal knowledge. Provision

under Section 91 of Cr P C, in its true interpretation, cannot envisage an accused

person. In this regard, it is not out of place to mention that the Constitution Bench of
the Supreme Court of India in 'State of Gujrat vs. Shyamlal Mohanlal Choksi' (AIR 1965

SC 1251) by interpreting Section 94 of Code of Criminal Procedure, 1898 (which is pari

materia to Section 91 of Cr P C) has unanimously held that the said provision in its

true interpretation does not apply to an accused.

"30. It seems to us that in view of this background the Legislature, if it were minded to
make S. 94 applicable to an accused person, would have said so in speci c words. It
is true that the words of S. 94 are wide enough to include an accused person but it is
well recognised that in some cases a limitation may be put on the construction of the
wide terms of a statute (vide Craies on Statute Law, p. 177). Again it is a rule as to the
limitation of the meaning of general words used in a statute that they are to be, if
possible, construed as not to alter the common law (vide Craies on Statute Law p.
187).

31. There is one other consideration which is important. Art. 20(3) has been construed
by this Court in Kalu Oghad's case, (1962) 3 SCR 10: (AIR 96l SC 1808), to mean that
an accused person cannot be compelled to disclose documents which are
incriminatory and based on his knowledge: S. 94, Criminal Procedure Code, permits
the production of all documents including the above-mentioned class of documents. If
S. 94 is construed to include an accused person, some unfortunate consequences,
follow. Suppose a police o cer --- and here it is necessary to emphasize that the
police o cer has the same powers as a Court-directs an accused to attend and
produce or produce a document. According to the accused, he cannot be compelled
to produce this document under Art. 20(3) of the Constitution. What is he to do? If he
refuses to produce it before the Police O cer, he would be faced with a prosecution
under S. 175, Indian Penal Code, and in this prosecution he could not contend that he
was not legally bound to produce it because the order to produce is valid order if S. 94
applies to an accused person. This becomes clearer if the language of S. 175 is
compared with the language employed in S. 485, Cr. P. C. Under the latter Section a
reasonable excuse for refusing to produce is a good defence. If he takes the
document and objects to its production, there is no machinery provided or the police
to hold a preliminary enquiry. The Police O cer could well say that on the terms of the
Section he was not bound to listen to the accused or his counsel. Even if he were
minded to listen, would he take evidence and hear arguments to determine whether
the production of the document is prohibited by Art. 20(3). At any rate, his decision
would be nal under the Code for no appeal or revision would lie against his order.
Thus it seems to us that if we construe S. 94 to include an accused person, this
construction is likely to lead to grave hardship for the accused and make investigation
unfair to him.

……………………………….

33. Keeping the above considerations in mind, let us look at the terms of the Section.
It will be noticed that the language is general, and prima facie apt to include an
accused person. But there are indications that the Legislature did not intend to include
an accused person. The words attend and produce' are rather inept to cover the case
of an accused person. It would be an odd procedure for a Court to issue a summons
to an accused person present in Court 'to attend and produce' a document. It would be
still more odd for a police o cer to issue a written order to an accused person in his
custody to attend and produce a document.

40. Therefore, agreeing with the High Court, we hold that S. 94 on its true construction,
does not apply to an accused person….."

Even by virtue of Section 165 of the said Act, the court cannot compel a party to

produce a document which is constitutionally protected inasmuch as Section 165 of

the said Act cannot override Part III of the Constitution of India. As it is not open to a

court to compel a party to make a particular kind of pleading or to amend its pleading

or to examine a particular witness while, it is duty of a court of law not only to do

justice but to ensure that the justice is done and it should bear in mind that it should

act only according to law and not otherwise. (Vide The Municipal Corporation of

Greater Bombay vs. Lala Pancham and Others. AIR 1965 SC 1008. At Page 1014)

In view of the aforesaid pronouncement, it can be said that the mechanism of Section

91 Cr. PC cannot be applied at all, either directly or indirectly, in order to obtain

certi cate and/or original computer when the same is within the custody of an

accused.

Since an accused cannot be compelled through the process envisaged under Section

91 of Cr P C, a proceeding under Section 175 of the Indian Penal Code ('IPC') for

omission to produce document as sought for cannot be instituted against an accused

as is evident from the language of Section 175 of the I P C. The charge under Section

175 I P C is premised that the person called upon to produce document or electronic

record has to be person 'being legally bound to deliver the same'. Since an accused is

not 'legally bound' to produce the document, charge under Section 175 of IPC cannot

slapped against an accused. (Vide 'Iswar Chandra Ghosal Vs. Imperor', (1908) 12 Cal

WN 1016).

On the same logic, the charge under Section 204 I P C which penalizes destruction of

document and/or electronic record in order to prevent its production as evidence,

cannot be slapped against an accused.

It can further be added that in terms of Section 131 of the said Act, even where the

document and/or electronic record of an accused is under the control of a third

person, the latter cannot be compelled to produce the same by court process.

According to Section 131 of the said Act, the extent of the obligation of a person

having interest in the document is the determining issue. In case the said person is

not compellable to give up the custody of the document, then the custodian of the

document is also not compellable. Way back in 1961, the Hon'ble Bombay High Court
in 'The State of Maharashtra vs. Nagpur Electric Light and Power Co. Ltd. and Another'

(AIR 1961 BOM 242), had applied Section 131 of the said Act qua a company against

which proceeding was pending. It was held that since the company being an accused

cannot be reached by virtue of Article 20(3) of Constitution of India to produce

incriminating document, the company can therefore, object to its own employee

producing the document without the consent of the company under Section 131 of

the said act.

In the aforesaid backdrop, it is therefore evident that the modalities under Section 91

Cr P C cannot be invoked in a situation where the document is either in the custody of

the accused or in the custody of a third person.

Analyzing form aforesaid angle, it would be evident that the consequence of non-

availability of the document in aforesaid contingencies which may often surface out in

a criminal prosecution, was not addressed by the Hon'ble Supreme Court of India in

Arjun Panditrao (supra).

H. Compellable Modes of Recovery of certi cate:

The Hon'ble Supreme Court had discussed the provision under Section 91 Cr P C

without there being any reference to other compellable mode of recoveries such as

Search Warrant under Section 93 Cr. PC, etc. The Supreme Court has merely taken

refuge to the ancient maxim 'Lex Non Cogit ad impossibilia' (the law does not compel

a man to do which he cannot possibly perform). In a given case for indifference of a

third party the certi cate under Section 64 B of the said Act, may not be obtained by a

trial court despite its best effort under Section 91 of Cr P C. In such a case, if only on

such count the certi cation is dispensed with as apparently held by the Hon'ble

Supreme Court, the consequence would be deleterious since the same will open ood

gate whereby Secondary evidence will be accepted by a court of law. Such receipt of

Secondary evidence is not only contrary to the Best Evidence Rule but may in
appropriate cases affect the interest of either of the parties. Since from the structure

of Cr P C (vide Chapter VI/Section 90), it would be evident that harsher mechanism for

procuring evidence is already conceptualized by the Legislature, there is no reason not

for not resorting to the same. Since in Arjun Panditrao (supra) the other compellable

methods were not dealt with, therefore, trial court may abort the other mechanism as

envisaged under Cr P C after invocation of Section 91 Cr. PC and its failure to obtain

the electronic record, and may admit the Secondary evidence which eventuality tinker

upon the fundamental right of fair trial under Article 21 of the Constitution of India of

a litigant be it an accused or complainant/informant.

I. Concurring view, the Law of Future:

As indicated in Arjun Panditrao (supra), sub-Sections (2) to (5) of Section 65B of the

said Act are reproduction of sub-Sections (2) to (5) of Section 5 of the Civil Evidence

Act, 1968 (UK), with minor changes. These Sections have been repealed by the Civil

Evidence Act of 1995 (UK) and is no longer applicable in UK or European Union but we

are still carrying out British Legacy.

The concurring opinion of V. Ramasubramanian J. in Arjun Panditrao (supra) has

vigorously dealt with Legislative developments in U.S.A., U.K. and Canada on the

admissibility of electronic records and nally came to the conclusion that the major

jurisdictions of the world have come to terms with the change of times and the

development of technology and ne−tuned their legislations. Therefore, it is the need

of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced

20 years ago, and which has created a huge judicial turmoil, with the law swinging

from one extreme to the other in the past 15 years from Navjot Sandhu to Anvar P.V. to

Tomaso Bruno to Sonu to Shafhi Mohammad. This signi es a lot.

Unlike USA, UK, Canada and other developed countries of the World, in India the

Information Technology Act, 2000 is still the standalone legislation to give a llip to
the growth of electronic based transactions in the context of widest possible use of

information technology worldwide. Whatever amendments have been made in Indian

Penal Code, 1860; the Banker's Books Evidence Act, 1891; the Reserve Bank of India

Act, 1934 and the said Act are pursuant to IT Act. Sec 65B is also a product of IT Act.

Let us not make two bones of it that Technology is always a double-edged sword and

can be used for both the purposes i.e. good or bad. Steganography, Trojan Horse,

Scavenging (and even Dos or DDos) are all technologies and per se not crimes, but

falling into the wrong hands with an illicit intent who are out to exploit them or misuse

them, those technologies can come into the array of cyber-crime and that is why those

are punishable offences in some of the countries but not in India. Our IT Act is not

good enough to combat the 21st Century Cyber Security Threats like Deepfakes,

Synthetic Identities, AI-powered Cyberattacks, Disinformation in social media,

Cyberattacks on Iot and lot more.

Now keeping in mind that our country is the 2nd in position in terms of usage of

internet and 3rd in position in terms of cybercrime threats, it is time to take a lead in

making new laws to ensure that technology do not betray us. A better law would not

only provide us better protection from modern day cyber threats but would also

introduce effective, better, easy and scienti c Rule of Evidence into our Evidence Act

by way of amendments to do away with the strict rule of admissibility of Secondary

electronic evidence and eliminate Section 65-B. Otherwise, the Law will not be able to

keep pace with the society.

J. What can be the substitute of Section 65B Certi cation:

According to our humble opinion, on scienti c basis, 'Metadata' and 'Hash Value'

authentication can be a better substitute of Section 65B. Metadata is 'data about

data'. It is generated by virtually everyway, we communicate in our 21st Century life. It

can be said to be the scienti c footprint/genome of every single electronic

record/communication in whatever form it is e.g. data le, image, video, message, call

record etc. From metadata, even a detailed picture of anyone's life including one's

interactions, behavior, tendencies etc. can be ascertained.

Every electronic record which is created/modi ed/stored by any computer, laptop,

mobile or other digital devices like digital camera, scanner, e-reader, ash drive etc.

maintains and stores metadata containing various attributes/information relating to

that electronic record. For example, in respect of a picture taken by a mobile phone or

digital camera, the metadata would consist with the attributions like the name of the

image, camera brand and model, aperture, shutter speed, ISO No, focal depth, dots per

inch, the date and time when the image was created, GPS location of taking of the

picture, keywords related to the image and so on. Likewise in respect of a word le,

the metadata would consist with the attributions like le name, author's name, name

of the application through which it was created, date and time of creation, date last

printed, date last saved, last modi ed, last accesed, le size, counts of

page/paragraph/line/character, hash value and so on. Country like Australia has

already brought amendments into their telecommunication laws in relation to

metadata.

On the other hand, Hash Value can be contemplated as ngerprint of les or digital

data. The contents of a le are processed through a cryptographic algorithm and a

unique numerical value, called Hash Value. Hash Value is produced to identify the

contents of the le. If the contents are modi ed in any way, the value of the Hash will

also be changed. This Hash Value Authentication thus can ensure the authenticity of

the contents of any Secondary evidence generated/copied from any original electronic

record.

So whenever any Secondary electronic record is intended to be used as Secondary

evidence for the reason that the original record/device is missing or forms part of a

computer system or network which becomes impossible to be brought before the

Court or electronic data is stored in a cloud storage etc etc, then instead of producing

certi cate under Section 65B, the metadata authentication and hash value

authentication can be asked for by the Court to authenticate the same. This would be

more scienti c than mere parroting the Victorian language of Section 65B by the

producer of the certi cate. Not only it would minimize the time and energy because

metadata and hash value are easily available but also would ensure reliability of the

copy intended to be produced before the Court. And this is only possible when

appropriate legislation is brought into effect by eliminating the rigors of Section 65-B.

Conclusion:

Law declared in Arjun Panditrao (supra) is a step forward in creating alarm for

evolution of a suitable law in India to militate the rift between Section 65B of the said

Act and the Society and if our Legislature doesn't immediately step in, it is the citizens

of India who are going to pay heavy price for it in future.

Views are personal only

(Advocates are practising Lawyers at Calcutta High Court)

TAGS ARJUN PANDITRAO  EVIDENCE ACT  SECTION 65B  INFORMATION TECHNOLOGY ACT 

CRPC 

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