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Arjun Panditrao Khotkar v/s Kailash Kushanrao Gorantyal: Civil Appeals

20825-20826 of 2017
By Bhargavi.nigam | Views 19072
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On 14th July 2020, the Hon'ble Supreme Court of India delivered its judgment in the case of
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others Others[1]. The
Supreme Court while overruling the case of Shafhi Mohammad v. State of Himachal
Pradesh
Pradesh[2] rea!rmed the law laid down in Anvar P.V. v. P.K. Basheer & Others Others[3] which
held that the certification requirement under Section 65B(4)[4] of the Indian Evidence Act,
1872 is a condition precedent to the admissibility of electronic evidence.

In the recent past, the certification requirements under Section 65B of the Evidence Act have
been a topic of discussion in various scholarly articles. However, through this article we intend
to discuss and restrict our views to the detailed understanding of the practical applicability of Luxury
the aforementioned provision and focus on the clarity of technical requirements under
Section 65B(4) of the Evidence Act as enumerated by the Supreme Court in Arjun Panditrao Properties:
Khotkar's case
case.
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Introduction To The Issue
The Division Bench of the Supreme Court while dealing with the interpretation of Section 65B Explore Max Estates
of the Evidence Act referred the case to the larger bench of the Supreme Court in view of the luxury residential
conflict between Shafhi Mohammad's case and Anvar P.V.'s case on the issue of mandatory experiences in Delhi NCR
requirement of certification under Section 65B(4) of the Evidence Act for admissibility of
electronic evidence. Max Estates

The Three-Judge Bench of the Supreme Court in Anvar P.V.'s case held that an electronic
record by way of secondary evidence shall not be admitted in evidence unless the
requirements under Section 65B of the Evidence Act are satisfied.
Learn More

Thus, in case of electronic evidence stored in CDs, VCDs, chips, etc.; the same shall be
accompanied with the certificate in terms of Section 65B of the Evidence Act, obtained at the
time of taking the document, without which, the secondary evidence pertaining to that
electronic record, is inadmissible.
LawArticles
The Division Bench of the Supreme Court in the case of Shafhi Mohammad, taking a contrary
view against the observations of the Three-Judge Bench in Anvar P.V.'s case held that the
certificate requirement under Section 65B(4) of the Evidence Act is not always mandatory and How To File For Mutual Divorce In Delhi
the condition mandated as per Section 65B(4) of the Evidence Act for admissibility of
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electronic evidence is only to be imposed when the person producing evidence is in the
For Mutual
control of the device and not the opposite party. Notably, admissibility of electronic evidence
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produced by a party who is not in possession of the device, cannot be excluded on the ground
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of absence of certificate, which the party cannot secure under Section 65B(4) of the Evidence
Consent
Act.
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Findings Of The Supreme Court In Arjun Panditrao Khotkar's Case
Certificate not required if original document is produced:
The Supreme Court referring to Section 65B of the Evidence Act observed that sub-section (1)
of Section 65B of the Evidence Act begins with a non-obstante clause, and it then goes on to
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mention that the information contained in an electronic record produced by a computer
becomes a "document" by deemed fiction. It is hoped
that the
Prohibition of
This deeming fiction only takes e"ect if the conditions enumerated under Section 65B of the Child
Evidence Act are satisfied in relation to both the information and the computer/ device in Marriage
question and if such conditions are met, the "document" shall then be admissible in any (Amendment) Bill, 2021, which
proceedings without further proof or production of the original. Section 65B(1) of the Evidence intends to inc...
Act clearly di"erentiates between the original information contained in the "computer" itself
and copies made therefrom - the former being primary evidence, and the latter being
secondary evidence.
Facade of Social Media

The requisite certificate in sub-section (4) is unnecessary if the original document itself is One may very
produced. This can be done by the owner of a laptop computer, a computer tablet or even a easily get
mobile phone owner, by stepping into the witness box and proving that the concerned device, absorbed in
on which the original information is first stored, is owned and/or operated by him. the lives of
others as one
In cases where "the computer", as defined, happens to be a part of a "computer system" or scrolls through a Facebook news ...
"computer network" (as defined in the Information Technology Act, 2000) and it becomes
impossible to physically bring such network or system to the Court, then the only means of
proving information contained in such electronic record can be in accordance with Section
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65B(1), together with the requisite certification under Section 65B(4) of the Evidence Act.
The Inherent
Certificate under Section 65B (4) of the Evidence Act, a condition precedent for power under
admissibility of electronic evidence: Section 482
The Supreme Court while discussing Shafhi Mohammad's case held that in the light of Anvar in The Code
P.V.'s case
case, the law laid down in Shafhi Mohammad's judgment is incorrect. It was observed Of Criminal
that the Evidence Act does not contemplate or permit the proof of an electronic record by oral Procedure, 1973 (37th Chapter of t...
evidence if requirements under Section 65B of the Evidence Act are not complied with.

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The major premise of Shafhi Mohammad's case that such certificate cannot be secured by
persons who are not in possession of an electronic device is wholly incorrect. The Supreme
Court by placing reliance on the provisions of the Evidence Act, the Code of Civil Procedure, revolutionizing various sectors of the
1908 (CPC) and Criminal Procedure Code, 1973 (CrPC) held that an application can always be economy, and the legal i...
made to a Judge for production of such a certificate from the requisite person under Section
65B(4) of the Evidence Act. As such, the Supreme Court held that Shafhi Mohammad's case
does not lay down the correct position of law and is therefore overruled.

Application to be filed in court if person/ authority refuses to give certificate:

The Supreme Court further held that in circumstances where all bonafide e"orts made to get Lawyers in India
the requisite certificate under Section 65B(4) of the Evidence Act from the concerned authority
or person are exhausted, and the person or authority either refuses to give such certificate, or
does not reply/ fails to comply with such demand, the party asking for such certificate can
apply to the Court for its production under the aforementioned provisions of the Evidence Act,
CPC or CrPC.

It was further held that once such application is made to the Court, and the Court then orders
or directs that the requisite certificate be produced by a person to whom it sends a summons,
the party asking for the certificate has done all that he can possibly do to obtain the requisite
certificate and the said party must then be relieved from the mandatory obligations contained
in Section 65B(4) of the Evidence Act.

Stage at which the certificate is to be filed:

On the issue of the stage at which such certificate under Section 65B(4) of the Evidence Act Lawyers Membership - Get Clients
must be furnished to the Court, the Supreme Court relying on Anvar P.V.'s case, observed that Online
such certificate must accompany the electronic record when produced as evidence in court. It
was held that it is only applicable in cases where such certificate could be procured by the
person seeking to rely upon an electronic record.
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Instantly
On the other hand, in cases where either a defective certificate is given, or in cases where
such certificate has been demanded and is not given by the concerned person, the Judge
conducting the trial must summon the person/persons referred to in Section 65B(4) of the
Evidence Act, and require that such certificate be given by such person/ persons.

This, the trial Judge ought to do when the electronic record is produced in evidence before
him without the requisite certificate in the aforesaid circumstances. This is, of course, subject
to discretion being exercised in civil cases in accordance with law, and in accordance with the
requirements of justice on the facts of each case.

When it comes to criminal trials, it is important to keep in mind the general principle that the
accused must be supplied with all the documents that the prosecution seeks to rely upon
before commencement of the trial, under the relevant sections of the CrPC.

It was further held that till the hearing in a trial is not complete, the requisite certificate can be
directed to be produced by the learned Judge at any stage, so that information contained in
electronic record can then be admitted and relied upon in evidence.

Directions issued by Supreme Court to cellular and internet service providers:

The Supreme Court on this issue noted that the Department of Telecommunication's license
generally oblige internet service providers and providers of mobile telephony to preserve and
maintain electronic call records and records of logs of internet users for a limited duration of
one year.

Therefore, if the police or other individuals (interested, or party to any form of litigation) fail to
secure those records, or secure the records but fail to secure the certificate, within that
period, the production of a post-dated certificate (i.e. one issued after commencement of the
trial) would in all probability render the data unverifiable.

This places the accused in a perilous position, as, in the event the accused wishes to challenge
the genuineness of this certificate by seeking the opinion of the Examiner of Electronic
Evidence under Section 45A of the Evidence Act, the electronic record (i.e. the data as to call
logs in the computer of the service provider) may be missing, post the one year period.

To obviate this issue, the Supreme Court issued general directions to cellular and internet
service providing companies to maintain Call-Data Records ("CDRs") and other relevant
records for the concerned periods in tune with Section 39 of Evidence Act in a segregated and
secure manner if a particular CDR or other records are seized during investigation in the said
period.

Notably, concerned parties can then summon such records at the stage of defense evidence
or if such data is required to cross examine a particular witness. The above directions shall be
applicable in criminal trials till appropriate directions are issued under various relevant terms
of the applicable license or under Section 67C of Information Technology Act, 2000.

The Supreme Court also directed that appropriate rules and directions should be framed in
exercise of the Information Technology Act, 2000 by exercising powers such as in Section 67C
of the Information Technology Act, 2000, and also framing suitable rules for the retention of
data involved in trial of o"ences, their segregation, rules of chain of custody, stamping and
record maintenance, for the entire duration of trials and appeals, and also in regard to
preservation of the meta data to avoid corruption. Likewise, appropriate rules for
preservation, retrieval and production of electronic record, should be framed.

Conclusion:
The Supreme Court through this judgement in the case of Arjun Panditrao Khotkar has
brought abundant clarity on the conflicting views and practical applicability of the mandatory
requirement of certification under Section 65B(4) of the Evidence Act for establishing the
admissibility of an electronic evidence which had become a mere formality in certain
circumstances.

Notably, looking at it from a practical standpoint, the much needed clarification provided by
the Supreme Court on the options available to the party who cannot obtain the certificate
under Section 65B(4) of the Evidence Act will certainly help parties circumvent objections on
the admissibility of electronic evidence.

End-Notes:
1. Civil Appeals 20825-20826 of 2017
2. (2018) 2 SCC 801
3. (2014) 10 SCC 473
4. The Indian Evidence Act, 1872

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