Certificate under Section 65B(4) of Evidence Act is a condition precedent to the admissibility of electronic evidence: Supreme Court

The Supreme Court has held that the certificate required under Section 65B(4) of the Indian Evidence Act, 1872 is a condition precedent to the admissibility of evidence by way of electronic record (Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors.).A three-judge Bench of Justices Rohinton Fali Nariman, Ravindra Bhat and V Ramasubramanian also held that if a certificate which is a pre-requisite for admissibility of evidence under Section 65B cannot be obtained as the person or authority concerned "refuses" to share it, then summons could be sent by the court to such person or authority to produce it. .Section 65B of the Evidence Act deals with admissibility of electronic records. Sub-section (4) states:(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,(a) identifying the electronic record containing the statement and describing the manner in which it was produced;(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it..The judgment reads,."In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC."Supreme Court.It was further held that once such application is made, and the court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, "the party asking for the certificate" would be deemed to have done all that he can possibly do to obtain the requisite certificate..The need to peruse the question of whether certificate required under Section 65 B(4) is a condition precedent to the admissibility of electronic evidence arose after a Bench of Justices Ashok Bhushan and Navin Sinha referred the question to a larger bench in view of the conflict between Shafhi Mohammad v. State of Himachal Pradesh and Anvar PV v. PK Basheer. .Is Certificate under Evidence Act mandatory for production of Electronic Evidence? SC refers question to larger Bench.In Shafhi Mohammad, it was held that a party who is not in possession of the device from which the electronic document is produced, cannot be required to produce certificate under Section 65B (4) of the Evidence Act. The question before the Bench in this case was whether videography of the scene of crime or scene of recovery during investigation should be necessary to add weight to the evidence collected. .However, in Anvar PV, it was observed that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. .The issue now appears to be settled, with the Bench headed by Justice Nariman ruling in its July 14 judgment that the "law laid down in Anvar P.V. does not need to be revisited."."We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law."Supreme Court.The Bench also ruled that the required certificate under Section 65B(4) would be "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."Supreme Court.The judgment was passed in a petition filed by Shiv Sena strongman and then Minister of State Arjun Khotkar, who had moved the Apex Court in 2017 against a Bombay High Court order which had termed his election void. .Khotkar, a four-time MLA, contested the election in 2014 and won with a margin of 296 votes against Congress’s Kailash Gorantyal. Gorantyal later alleged that each set of nomination papers filed by Khotkar suffered from defects of a substantial nature and therefore, all four sets of nomination papers were improperly accepted by the Returning Officer.Relying on video camera footage outside the Returning Officer's office, it was alleged that Khotkar filed his nomination papers at 3:53 pm, beyond the deadline of 3 pm on September 27, 2014. Khotkar, on the other hand, stated the he had handed over the nomination forms at 2:20 pm. Gorantyal thus challenged the election before the Bombay High Court..The Aurangabad Bench of the Bombay High Court asked the Election Commission to produce the entire record of the election, including the original video recordings. A specific order was made that this electronic record needs to be produced along with the ‘necessary certificates’. Though the Commission did not produce a certificate in writing, the Returning Officer in her cross-examination stated that there was no complaint with regard to the working of video cameras at her office.Based on this “substantial compliance” of the requirement of giving a certificate under Section 65B of the Evidence Act, it was held that the CDs/VCDs were admissible in evidence. Thus, based on this evidence, the Bench of Justice TV Nalawde on November 24, 2017, ruled the election of Khotkar as void. .Khotkar thus approached the Supreme Court in appeal, contending, among other things, that without the necessary certificate in writing under Section 65B(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested could not have been admitted in evidence..[Read judgment]