In the recent judgment of ANVAR P.V. VERSUS, P.K. BASHEER AND OTHERS, in CIVIL APPEAL NO. 4226 OF 2012 decided on Sept., 18, 2014, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Court as to the admissibility of the Electronic Evidences. The court has interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that data in CD/DVD/Pen Drive are not admissible without a certificate u/s 65 B(4) of Evidence Act. It has been clarified that in case of computer output without such a certificate, neither there cannot be oral evidence to prove such a electronic evidence the output in electronic media nor the opinion of the expert under section 45A Evidence Act could be resorted to prove the genuineness.
The judgment would have serious implications in all the cases where the prosecution rely on the electronic data and particularly in the cases of anticorruption cases where the reliance is being placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the court. In all such cases, where the CD/DVD are being forwarded without a certificate u/s 65B Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to their genuineness cannot be looked into by the court as evident from the Supreme Court Judgment. It has been specified in the judgment that Genuineness, Veracity or Reliability of the evidence is seen by the court only after the stage of relevancy and admissibility. It was further observed that all these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
In the anticorruption cases launched by the CBI and anticorruption/Vigilance agencies of the State, even the original recording which are recorded either in Digital Voice Recorders/mobile phones are not been preserved and thus, once the original recording is destroyed, there cannot be any question of issuing the certificate under section 65B(4) of the Evidence Act. Therefore in such cases, neither CD/DVD containing such recordings are admissible and can be exhibited into evidence nor the oral testimony or expert opinion is admissible and as such, the recording/data in the CD/DVD’s cannot become a sole basis for the conviction.
In the aforesaid Judgment, the court has held that Section 65B of the Evidence Act being a ‘not obstante clause’ would override the general law on secondary evidence under Section 63 and 65 of the Evidence Act. The section 63 and section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act. The Constitution Bench of the Supreme Court overruled the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[(2005) 11 SCC 600 by the two judge Bench of the Supreme Court. The court specifically observed that the Judgment of Navjot Sandhu supra, to the extent, the statement of the law on admissibility of electronic evidence pertaining to electronic record of this court, does not lay down correct position and required to be overruled.
The only options to prove the electronic record/evidence is by producing the original electronic media as Primary Evidence court or it’s copy by way secondary evidence u/s 65A/65B of Evidence Act. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. In the present case, the court observed that
“The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.”
It can be commonly seen that in most of the cases, electronic record are being produced in the court particularly mobile/DVR/Spy Cam recording in the form of CD/DVD/Pen Drive and are relied in the civil as well as criminal cases. Normally the parties after recording the same, download the same on the computer/CD/DVD and delete the original recordings from the mobile/DVR/Spy cam and the resulting implications as evident from the aforesaid Judgment are such recordings in CD/DVD are not admissible and even oral as well as expert testimony does not comes to its rescue.
Recently some police/vigilance/anticorruption in its endeavour to curb corruption has asked the people to make the audio video recording of demand of bribe by the public servants and forward the same through emails/whatsApp, there is a caution as evident from the aforesaid discussion that such recordings would not be admissible and cannot become the basis of conviction until the original are preserved or proved in the court of the law by means of 65A/65B of the Evidence Act.
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