Tuesday, 14 July 2020

Supreme Court latest Judgment : Certificate required under Section 65B(4) is a condition precedent to the admissibility of Electronic evidence

The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law
declared by this Court on Section 65B of the Evidence Act. The
judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated
03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law
correctly and are therefore overruled.
(b) The clarification referred to above is that the required
certificate under Section 65B(4) is unnecessary if the original document
itself is produced. This 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 first stored, is owned and/or operated by him. 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 certificate under Section
65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an
electronic record as such is used as primary evidence under Section 62
of the Evidence Act…” is thus clarified; it is to be read without the words
“under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be
revisited.
(c) The general directions issued in paragraph 62 (supra) shall
hereafter be followed by courts that deal with electronic evidence, to
ensure their preservation, and production of certificate at the
appropriate stage. These directions shall apply in all proceedings, till
rules and directions under Section 67C of the Information Technology
Act and data retention conditions are formulated for compliance by
telecom and internet service providers.
(d) Appropriate rules and directions should be framed in exercise
of the Information Technology Act, by exercising powers such as in
Section 67C, and also framing suitable rules for the retention of data
involved in trial of offences, 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 as indicated earlier,
after considering the report of the Committee constituted by the Chief
Justice’s Conference in April, 2016.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 20825-20826 OF 2017

ARJUN PANDITRAO KHOTKAR Vs  KAILASH KUSHANRAO GORANTYAL 



Dated: 14th July, 2020.
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