This is to ensure that we donot mis-interpret the judgement in the Sonu@Amar Vs State of Haryana going only by the discussions on legal issues that the Judge has added in the Judgement before arriving at the final judgement.
My first reactions on the Sonu@Amar case was based on the article titled : Evidence Law; Sonu @ Amar Vs. State of Haryana [Supreme Court of India, 18-07-2017], Published by Legal India on July 18, 2017.
It went on to present an abstract stating: Evidence Act, 1872 – S. 65B (4) – Interpretation of – Certificate for Proving Electronic Records – Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage.
The report prominently highlighted the quotes from the judgement “…There is no doubt that the judgment of this Court in Anvar’s case has to be retrospective in operation unless the judicial tool of ‘prospective “overruling’ is applied.
The Social Media immediately picked up this lead and spread the words that old judgements delivered by the Courts between 04.08.2005 and 18.09.2014 (Between the Afsan Guru Judgement and basheer Judgement) need to be revisited because of the Sonu@Amar judgement.
We consider that this view is misplaced.
We need to observe that the Sonu@Amar judgement has also stated “retrospective application of the judgment is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases“
Hence it went on to dismiss the appeal.
It appears that many have read this judgement ignoring that the Court rejected the appeal and did not agree for whatever was the reason that there is a need to revisit cases where Section 65B certificate was not submitted and evidence was accepted by the Courts.
Many WhatsApp sharing messages highlighted the view that all old cases should be “re-visited” according to the Court. This is not the correct inference that we should derive.
Secondly, the Sonu@Anvar Judgement gives an impression that law on Section 65B was created by the Afsan Guru judgement and changed by the Basheer Judgement. This is not entirely correct.
Law was created with ITA 2000 and Supreme Court interpreted in one manner in the Afsan Guru case and corrected it in the Basheer case….It is only the Cyber Jurisprudence that is developing…
Judgements can change law where the the judgement adds or delets to the law as written… When it is only a realization and interpretation of law as it is, we need not treat as if law came into existence only because of the judgements….
Afsan Guru judgement did not create the Section 65B certification hence it is not only the cases between the two judgements that the Sonu@Amar judgement should debate revisiting, but all bad judgements since 17th October 2000 where Courts have ignored presentation of Sec 65B certification. This view would have created more problems than it could solve.
Now Sonu@Amar judgement follows the Basheer judgement but only says that it would be impractical and hence un necessary to give it a retrospective effect and revise the earlier judgement of the High Court on which the appeal was made.
We agree that it would have created a chaos if a decision had been taken to re-visit earlier cases on this ground though we regret that the Courts were not interpreting the law properly at that time. This is one of those exceptional cases where the Courts erred and the error cannot be easily corrected by a general order to annul the earlier judgement.
Though the Court under a similar argument where the legislators were not clear in wording Section 66A, slapped the legislators and scrapped the section, we cannot slap the Courts for their ignorant interpretation of Section 65B in the past and argue for scrapping all the old judgements. We have to let it pass.
I am however sure that in deserving cases where the evidence has been tampered with and Courts went on to base their judgements on “tampered uncertified electronic evidence“, it should be possible to challenge the judgement.
The cause of action for seeking such review may not be primarily for the technical reason that the evidence was not certified, but for the reason that the genuiniity of the evidence is questioned.