Arjun Pundit Rao judgement.. Further Jurisprudence emerges on Section 65B

Section 65B of Indian Evidence Act came into existence on 17th October 2000 along with the notification of ITA 2000.

For all the professionals in the legal circles including the Judges, understanding Section 65B and its necessity was almost impossible. Even today after 21 years, if debate is still going on on this section, one can understand….not the complexity of the law but the difficulty of unlearning and re-learning in human beings.

For decades the legal professionals are trained to look at evidence in the mould of “Oral” and “Documentary” or “Primary” and “Secondary”. As long as they continue to cling on to these concepts, it will be difficult to appreciate the need for Section 65B.

The concept of “Evidence” as we know needs to be looked afresh in the context of electronic documents. I have explained the concept several times in the past both on this website as well as on ceac.in as well as through some You tube videos. (The latest video is available at https://www.youtube.com/watch?v=jEpEmQGjYsM&t=3s).

The concept had been admitted in a Court way back in 2004 in the Suhaskatti case (AMM Court in Chennai, where the undersigned had provided the first Section 65B certificate in India) but got derailed by the Supreme Court in  the Afzal Guru case in 2005.

For those who think law is made only through Judgements and the wordings used in the statute and intentions of the law makers are secondary, the Afzal Guru judgement was proof enough to say that Section 65B certificate is not mandatory.

In the P V Anvar Vs P K Basheer  judgement, (2014) the Supreme Court had made it amply clear that Section 65B certificate was mandatory for admissibility of all Electronic documents as evidence. It also over ruled the Afzal Guru judgement.

However there were still people who did not agree and they rallied behind the erroneous judgement of the Shafhi Mohammad Case (2018) which gave a strange self contradictory statement that

a) If a person is in possession of the original document, Section 65B is not mandatory.

b) If a person is not in possession of the original document, Section 65B certificate is not mandatory

In other words, where it was possible for the Court to examine the original document, the Court said that a Certificate was mandatory. If the Court itself can view the document, the relevance of the certified copy would only be a technical requirement. On the other hand where the original is not before the Court and what is produced as evidence could be a fake evidence, Shafhi Mohammad judgement said that the certificate is not required.

In this judgement the Court got confused with the difficulty in obtaining a Certificate in a case where the person having the original is not cooperative in producing the evidence and ruled in favour of making it not necessary. In the process it ignored the possibility of fake evidences being fabricated in electronic form and produced as admissible evidences without anybody taking the responsibility for the same.

To some extent the current judgement delivered on 14th July 2020 in the case of Arjun Pundit Rao addresses this issue.

In this case the petitioner  who was a defeated candidate in an election challenging the election of Pundit Rao on grounds that the nominations were filed beyond the allowed time period and had to be rejected,  was relying on the digital evidence which was with the Returning Officer (RO). The RO however appears to be not cooperating with the respondent refusing to provide a Section 65B certificate. Though the petitioner had a copy of the video which it appears was also available to the Court, the absence of the Certificate was sought to be used by the defendant to get the evidence rejected as it went against him.

This case was therefore a case of an official who is a neutral person in this petition being biased and not cooperating with the Court and needs to be addressed in that perspective. It is open to the Court in this case to either make the RO an accused for withholding evidence or summon the evidence to the custody of the Court.

Once in the custody of the Court, the Court could have called its own expert (may be a Section 79A-ITA 2000 accredited Digital Evidence Examiner) or allowed cloned copies to be released to the petitioner to re-submit the evidence with Section 65B certificate.

We may recall that the AMM Court in Egmore which handled the Suhas Katti Case used this process in another case where it had the CD in its possession but still felt the need to call the undersigned for a Section 65B certificate to take it on record.

We may also recall that in the last parliamentary election in Mandya, Karnataka, in a prestigious battle, a similar issue of an objection raised by a candidate and recorded in the video before the RO was sought to be summoned by one of the candidates (who eventually won) but the RO claimed that the relevant portions were erased  and not available. The absence of a Section 65B certificate enabled a fabricated electronic document to be retained by the RO. Had this case been tested like the Pundit Rao case, then the question of the RO tampering with the evidence and being punishable under Section 65 of ITA 2000 or 204 of IPC would have surfaced.

The Punditrao judgement therefore has flagged such difficulties and also suggested that the Court could summon such records (Para 43 of the judgement). This cannot be a reason to expemt Section 65B Certification.

As I have held repeatedly, Section 65B certification is required to bring in a human being into the evidence and establish a method to convert the stream of binaries which is the “Original Evidence” into a “human readable/audible/visible form”.

In the P V Anvar judgement despite many points being cleared, making a reference to the CD as a “Original Document” was a small aberration. It however was not material to the final judgement but showed that the distinction between a “Container of electronic Evidence” and the “Electronic Evidence” itself was still getting mixed up.

In the Punditrao judgement we have moved a step further towards establishing the truth of what Section 65B is by categorically rejecting the Shafhi Mohammad judgement and also providing a solution to the problem which could have prompted the Shafhi Mohammad judgement.

However there is still a small omission which we may perhaps wait for some other Judgement to clarify.

I have pointed out that Section 65B(1) defines what is a “Computer Output” to which the further sub sections apply. According to the section “Computer Output” is the print out or stored, in a media produced by the computer.

The section verbatim is

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(P.S: Emphasis added for attention)

Para 21 of the Punditrao judgement for some reasons forget to allude to the words (hereinafter referred to as the computer output). The fact that  sub sections  65B(2) to 65B(5) refer to the “Computer Output” as defined under Sub Section 65B(1) is an important aspect to recognize as this provides clarity to the procedure of certification.

Many pundits interpret “Computer Output” to the original document (eg: in the Punditrao case, the video recording in the office of the RO first registered in the DVR or a memory card in a Camera in the form of binary strings) and interpret that the person who administers that device has to provide the certificate. This certificate is the first of the series of certificates that would be required as a “Contemporaneous Certificate” whenever the document is moved from one device to other.

In practice, the RO could place the first original memory card in safe custody by making a clone copy with a Section 65B certificate available to the candidates in a CD. Then these CDs may be copied by the petitioner to be produced in the Court for which a second Section 65B certificate is produced by the person who faithfully converts the document in the CD to say a pen drive presented to the Court.

The word “Computer Output” refers to each of these documents at different stages of transfer. It is not referring only to the first computer output. Hence when a CD content is re-copied, the re-copied material in print form or soft copy form is the computer output that Section 65B refers to and the certifier has to record how he converted the document in the source CD to the print out faithfully.

This recognition that the Original is in the possession of a person who allows some body else to access it who can take a print out and create a “Computer Output” is ingrained in the Section 65B. Because of this provision, if a document is viewable on the website  any viewer can record it and certify it as sourced from the website and prepare a Section 65B certified copy in print or soft copy form.

As long as the Certificate contains the details of the electronic document (which is the rendition of the binary stream as viewed through a software and hardware), the method of viewing and printing it, the details of the devices used for the purpose and contains the identity and signature of the person who viewed, printed and is signing the certificate, the Section 65B certified document is admissible.

Further the PunditRao judgement also did not refer to Section 17 of Indian Evidence Act which is important to note that Indian Evidence Act recognizes “Contained in electronic form” as a statement which is different from “Oral” and “documentary”. If we recognize this, “Three forms of Statement”, we will understand the further sections of admission where Sections upto 65 refer to “Documentary Non Electronic Statements” while 65A and 65B refer to “Documentary Electronic Form of Statement”.

I suppose we will then be able to forget Sections 59 and 60 on proving by oral admissions, Sections 61 to 65 proving by documents and look at Section 65A and 65B without the pre conditioning of our mind with the concepts of “Primary” and “Secondary” etc.

I request all Evidence Experts to take a fresh look at Section 65B based on the above and the Punditrao judgement as well as the Anvar Judgement.

I would be glad to receive any further comments if any.

Naavi

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Shafhi Mohammed Judgement over ruled

We have discussed the Shafhi Mohammad judgement of the Supreme Court in the past through several articles, (Refer :The tragedy of Shafhi Mohammad). The matter had come for review in the case of Arjun Punditrao Vs Kailash Kushanrao and the SC had referred it to a larger bench  on 26th July 2019.

Today the judgement in this case has been released which has rightfully reversed the judgement of the two member bench in the Shafhi Mohammad case and endorsed the earlier three member judgement in the case of P V Anvar Vs P.K. Basheer.

While a detailed analysis of the judgement can be taken up later, it is noted that the judgement reiterates that section 65B certificate is mandatory for admissibility of electronic documents as evidence in a Court of law.

Naavi

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Understanding Section 65B of Indian Evidence Act

Section 65B of Indian Evidence Act has been perhaps the most difficult techno legal concept that was introduced by ITA 2000 (Information Technology Act 2000) which even after 20 years of its existence, is yet to be uniformly understood.

The reason why it is difficult for advocates and judges to quickly grasp the intricacies of Section 65B is that they keep looking at the section with a wrong perspective of “Secondary Electronic Evidence” and compare it with the secondary documentary evidence discussed in sections immediately before and after Sections 65A and 65B.

In order to understand Section 65A and 65B, we need to close our eyes to sections  62,63,64, 65  and  66 of Indian Evidence Act. Instead we need to keep in our mind, Sections 3, 17, 22A. Additionally we need to understand the way Computers represent data and data storage which we call as “Evidence” and try to extract in a manner which human beings can understand.

These sections regarding admissibility of electronic evidence came into the statute on 17th October 2000. It was used in 2004 in the AMM Court Egmore resulting in the historic conviction of Suhas Katti, which was the first case in which conviction was obtained under ITA 2000. However in many other cases Section 65B was referred to but was never seriously taken note of either by the Court or the advocates. In the Afzal Guru case in 2005, Supreme Court ignored the need for mandatory requirement of Section 65B certificate and it became a precedence until in 2014, in the PV Anvar Vs P K Basheer, the Supreme Court (3 member bench) categorically expressed that Section 65B Certificate was mandatory for admissibility of Electronic evidence. This judgement also distinguished between “Admissibility” and “Genuinity” and stated that at the Admissibility stage, Section 65B is mandatory. However, the genuinity of an admitted evidence could be questioned subsequently during the trial.

In 2018, while deciding on an SLP the Shafhi Mohammed Vs State of Himachal Pradesh, a two member bench of the Supreme Court over ruled the earlier 3 member judgement and stated that

a) Where the device in which the original electronic document is present is in the custody of the person presenting the evidence, Section 65B certificate is required

b) Where the device in which the original electronic document is present is not in the custody of the person presenting the evidence, Section 65B certificate is not required.

Shafhi Mohammad Judgement is Totally Illogical

This decision was completely illogical since in the case where the device holding the  electronic document is present, the presenter can as well bring it directly as an “Evidence Object” and let the Court appreciate the individual evidence contained there in in any manner it deems fit with or without certificate.

On the other hand, if a person claims that the device in which the electronic evidence is present (or was present and might have been deleted now) , is not in his posession, then he need not produce any Section 65B certificate and simply present a print out (or a CD etc) and claim that it has to be admitted as evidence.

As a result accepting this argument is a direct invitation for admitting manipulated electronic evidence in the hearing.

In fact the need for Section 65B Certificate is greater when the device containing the electronic document cannot be brought directly into the Court.

Primary Vs Secondary argument

In the case of an electronic document, it is better to avoid a distinction of “Primary” and “Secondary” documents and not look for sections in the Indian Evidence Act applicable for “Primary Electronic Evidence” and “Secondary Electronic Evidence”.

If we look at Section 17 of IEA (Indian Evidence Act), it states:

An admission is a statement, 1[oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

Note that this section refers to a statement in three forms namely Oral, Documentary and Contained in Electronic Form.

The legislative intent in this section is to consider an “Electronic Document” as neither “Oral” nor “Documentary” but as a third category of statement different from the other two.

Section 22A and Section 59 speak of “Oral Evidence as to the contents of an Electronic document”.

Section 22A states that

Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.]

Section 59 states that

All facts, except the 1[contents of documents or electronic records], may be proved by oral evidence.

These two sections address the elimination of whether an electronic document can be proved by oral evidence or not and clearly states it cannot be proved by oral evidence.

Then IEA discusses under Sections 61,62,63,64 65 and thereafter in 66, different aspects of documentry evidence discussing how proof of contents of documents are to be produced.

Section 61 introduces the concept of Primary and Secondary Evidence. Section 62 refers to “Primary Documents” being presented in the Court. and Section 63 refers to what is a secondary document. Sections 64 and 65 indicate instances when Secondary evidence may be used instead of the Primary evidence.

After thus exhausting the discussion on Oral and Documentary evidence, IEA addresses Electronic Evidence which is the third category of evidence referred to in Section 22A. Section 65A states clearly that this is a “Special Provision” and goes on to state that

The contents of electronic records may be proved in accordance with the provisions of section 65B.

After thus introducing the special nature of the Section 65B, the Act goes on to explain how “Admissibility” of electronic evidence is provided.

We must note that in respect of electronic documents, what is presented when a hard disk or a CD is produced is not the “Primary Document” but a container of electronic documents of which a part is the evidence document. Also, the secondary documents indicated  in Section 63 refer to copies made by mechanical process, copies made by comparison with the original etc. These donot apply to the Electronic Documents.

Hence what is applicable to electronic documents and how it may be produced for admissibility is entirely covered only under Section 65B and nothing else.

If we look at Section 65B, it contains 5 sub clauses of which the very first sub clause “Section 65B(1) sets the stage for the other 4 sub clauses.

Section 65B(1) clearly starts with the statement “Notwithstanding anything contained in this Act” and hence once again confirms that the earlier sections 62 to 65 are not to be brought in in the interpretation of this section.

Section 65(B) also indicates that the electronic evidence can be produced for admissibility in two forms, either as a Print form or as a copy in a media.. Both these forms of presentation of information are referred to as “Computer Output” for further sub sections.

Section 65B(1) then states that such a Computer Output shall be deemed to be also a document and shall be admissible as evidence without further proof or production of the original, if conditions mentioned further are satisfied.

Section 65B(2) then continues and states that the conditions referred to in sub section (1) in respect of the computer output shall be ….

Note the use of the words “In respect of the computer output” in Section 65B(2). This confirms that the conditions discussed under subsections (a),(b),(c) and (d) of 65B(2) refer to the “Computer output” which is the print out or the soft copy of the evidence.

Some experts are unable to appreciate that these conditions of Section 65B(2) donot refer to the so called “Original” but to the Computer Output which is also a document. These sub clauses (a), (b) (c) and (d) and all these 4 conditions should be satisfied and all of them refer to the generation of the “Computer Output” and not the “original”.

Sub section (3) is to confirm that the provisions of Section 65B(2) will stand even when the production of the computer output is not done by a single computer but by a network of computers.

Sub section (4) lists the contents of the Certificate to be issued. It essentially expects that the electronic document which is the subject evidence is identified, the manner of its generation explained along with the devices used. The Certificate has to be signed by the person who produced the computer output. The word “responsible official position” is with reference to a device belonging to a company and it should be considered as refering to the sole owner of a computer if he is an individual.

Section 65B(4) states that the Certificate is adequate if it is stated as “To the best of the knowledge and belief” of the person signing. This limitation is not a dilution of the certificate but an acknowledgement that “What a person can certify as having seen” has certain uncertainties that are inherent to the technology and stating anything as “An absolute Truth” is not feasible. The inclusion of this limitation shows that the drafting has been done in a practically acceptable manner and not just for the theoretical satisfaction of  lawyers who want to attack the evidence on one ground or the other.

Subsection 65B(5) adds certain contingent events that may arise due to the technical reasons such as use of an input from a computer or other automated devices (Perhaps it would even cover input through AI algorithms), information that may incidentally become available etc.

Overall, Section 65B has been very intelligently constructed and there is a meaning to every subsection used in the Section. This has been well recognized in the P V Anvar Vs P K Basheer judgement which came to the right conclusion that the certificate is mandatory.

Why Certification has to be mandatory

There is another technical reason why a Court cannot accept any electronic document as evidence without a human being taking responsibility to confirm even if the so called original is in the hands of a judge.

Understanding this requires a journey into the technical world of how data is stored in a computing device and how it is interpreted.

We know that all computer documents are recorded and stored in the form of a sequence of Zeros and Ones.. These Zeros and Ones reside in side the media such as the hard disk or CD either in the form of “Charge” or “No Charge” or “Pits” and “Lands” (Pits and lands refer to the way data is represented in a CD) etc. If in a portion of the hard disk there is charge, we call it as a representation as “One”. If not we call it as “Zero”. A sequence of 8 such zones constitute a byte and several bytes in a sequence form a meaningful letter or number. Whether a sequence is a number or a letter has to be determined in the context.

The “Evidence” therefore in its original form is in the form of “Charge” or “No Charge” or “Pits” and “Lands”. No human being can see a hard disk or a CD and read the data by looking at the platters or the CD surface.

The “Original Evidence” is therefore always in the form of humanly unreadable data elements. It can only be made “readable” by a human when the data is read by another device such as a hard drive  or CD drive connected to a computer which picks up the data and processes it through a software application which itself rides on a hardware. Then the interpretation based on the configuration of the computer appears on the screen as readable text.

Similar processing has to be done to the sequence of binary data  to render them as a sound through the speakers or image or video.

Hence in rendering any binary sequence into a human experienceable form of text, audio or video there are many software and hardware computer elements which are used. If any of these function in an inconsistent manner the binary sequence may show up differently. So the same data seen by different persons in different computers, different operating systems, different applications may appear differently.

What Section 65B does is that it designates a person who is reliable to the Court as a witness to observe the binary in a standard device and let the Court know what he saw. In order to ensure that any different observations are reconciled, the certifier who provides the certificate will record the process and the devices used so that any other person using the same type of devices would come to a similar conclusion. If he has used some strange methods and rendered the evidence, then the Court can question him why he used a non standard method and come to a conclusion whether the method used for rendering the evidence was correct or not. For this purpose the Court may use a Section 79A accredited digital evidence examiner or let the other party to counter with another expert.

Even when the Court has on hand what people normally refer to as the “Original Evidence”, what the Judge has is the CD or the hard disk or say a pen drive. If he looks at it from outside, no evidence is visible. If the Judge wants to view the document than he has to use a computer, with the right software and hardware an view it. What he views would be conditional to what devices he uses and what configuration he uses. If he has a black and white monitor and views a colour picture, he may not see what he should see. If he views a Microsoft Word document in a PDF viewer or even a Note pad, he would not see any document. If he opens a .mp4 file in a audio software, he will not see any picture. If therefore he has used certain method to view the document, then the judge himself becomes  a self certifying Section 65B observer.

Since it is not proper for the Judge to be a witness himself, even in the case of the original electronic document container being in his hands, the Judge should rely on a trusted third party to provide the Section 65B evidence and not view and record the electronic evidence himself.

This delicate issue was recognized by the magistrate who was adjudging the Trisha Defamation case in the Chennai Egmore AMM court some time in 2004. No other court till date has recognized this aspect.

Looking at all the points made above, Section 65B has been well drafted and mandatory certification is unavoidable.

I therefore urge advocates and experts who are trying to support the faulty Shafhi Mohammad judgement to realize that they are not correct in their view point and should not mislead the bench which is hearing the reference in the case of Arjun Panditrao Khotkar V. Kailash Kushanrao Gorantyal.

I wish any of the readers of this article forward a copy of this article to the honourable bench  of the Supreme Court which is now hearing/or has heard the reference related arguments presented by otherwise eminent advocates.

Naavi

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CEAC Video Drop Box as a solution for E Commerce Delivery Scam

When we order an expensive device like a Mobile or laptop online and end up receiving a package containing stones as the above unfortunate gentleman is reported to have received, one wonders how to recover the loss.

The E Commerce platform may be reluctant to take the blame as this could be a fraud committed by a courier boy who may not be traceable at all. There may also be cases where because some fraudulent buyers have made false claims of such nature, the E Commerce platform or the merchant may not take the blame and accuse the customer himself that he is not telling the truth.

There are also issues of fake products being delivered or products of a different specifications and lesser value being delivered. In some of these cases the E Commerce platform may accept returns but in some cases they may not.

The Consumer in such cases need to initiate other actions to ensue that his grievance is resolved.

In Indian law, every Intermediary such as the E Commerce platform need to disclose a “Grievance Redressal Process” and the name and contact of the Grievance redressal officer for the website. Often most websites donot have such contacts disclosed on the website or the App.

Most service providers display a Terms of Contract which is accepted as a “Click Wrap Contract” which is not recognized under Information Technology Act and renders the contract as an “Implied Standard Form Contract” which can be disputed in a Court.

Further the Terms are under the custody of only one of the parties to the contract namely the platform and the Consumer does not have any control on changes that may be made to the terms. (Similar issues are also faced in respect of consents given on the basis of the version of a privacy policy as present on a website on the date of transaction”

As a result of the above, pursuing the legal case in a Court of law to claim damages for the lost money would be almost impossible even if the jurisdiction is a local Court. Amazon and Snapdeal have a Court jurisdiction in Delhi while Flipkart has a court jurisdiction in Bangalore which itself makes it expensive and impossible for buyers from any other place to take legal action.

In such cases, we need the following.

  1. A Dispute resolution Mechanism which is easy to use and not very expensive.
  2. Evidence about the fact that the package was not containing the product

Naavi suggests that we should make it mandatory for such intermediaries to ensure that the Courts in the place where purchase is made must have the jurisdiction to resolve the disputes. In one of the cases related to adjudication in Chennai, Punjab National Bank had argued that the customer has to file the case in Delhi instead of Chennai since the head quarters of the Bank was in Delhi. At that time a complaint had been made to RBI that Bank’s license should be cancelled outside Delhi, if they insist on this jurisdiction and then they agreed to proceed with the case.

In order to render the jurisdiction in a physical location irrelevant, the disputes should be resolved with the use of “Online Dispute Resolution”. With the increased use of Video conferencing even in Court proceedings, it should now be possible for a system like what has been recommended under www.odrglobal.in could be used for the purpose of online dispute resolution. This would sort out the problem of court jurisdiction to a large extent.

Additionally Naavi has activated a service under CEAC Drop Box (Refer www.ceac.in) and a new service called CEAC-EDB-Video Service to address the requirements of Evidence Collectio.

The CEAC-EDB service can be used to capture the Terms of Service as well as the Privacy Policy of a Website as also the product specifications offered by the seller for sale.

Where the unboxing of the expensive item purchased has to be evidenced, an advance appointment has to be fixed with CEAC and a registrar will then make a Video observation of the unboxing and record it in his computer with a CEAC certificate.

Both CEAC-EDB and CEAC-EDB-Video can be claimed with CEAC certification within 30 days of the dropping or at such extended time as agreed upon payment of the necessary fees.

Dropping of static documents will be available free but creation of CEAC-EDB Videos will be charged. Retrieving the certified copies of both would also require payment of fees.

The fees will be quoted based on the duration of the video and the size of the files.

These twin services would perhaps be able to sort out the evidentiary problems that may be faced by victims of the E Commerce delivery frauds.

Naavi

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Gujarat High Court rightly rejects Shafi Mohammed Judgement

The High Court of Gujarat in the election petition 3/2018 (Ashwinbhai Kamsubhai Rathod Vs Bhailalbhai Kalubhai Pandav and others) had an occasion to appreciate the CCTV footage as evidence.

This was a case where the petitioner had lost the election by a narrow margin which was less than the number of rejected postal ballot votes. The petitioner contested that the had asked for a recount which was refused and the returning officer had not followed proper procedure.

He had submitted the CCTV footage which showed that a form (supposed to be the request for recount) which was handed over to the returning officer. These facts as to the content of the electronic evidence came for discussion in the trial and the CCTV footage was relied upon for establishing these facts.

The CCTV footage however was not supported by Section 65B certificate and the defendant had relied upon Shafi Mohammed judgement . The respondent had rejected the reliance on Shafi Mohammed judgement and had cited (under para 19.1) the following:

19.1 It is submitted that the CCTV footage and DVD (Exh.56, 57 and 110) can not be taken into  consideration. It is submitted that those documents are the electronic documents and the requirement of Section 65B of the Indian Evidence Act would come in play, which is not fulfilled in the present case. It is submitted that, the decision of the Supreme Court of India in the case of Shafhi Mohammad Vs. State of Himachal Pradesh reported in (2018) 2 SCC 801 as relied by the petitioner, is not a good law on the question of admissibility of the electronic document, but the correct law on that point can be traced in the decision of the Supreme Court of India in the case of Anvar P.V. Vs. P.K.Basheer reported in (2014) 10 SCC 473. It is further submitted that, by the subsequent order of the Supreme Court of India (dated 26.07.2019) recorded on Civil Appeal Nos.20825 & 20826 of 2017 and cognate matters, the said issue is referred to the Larger Bench of the Supreme Court. The following authorities are relied on behalf of the respondent No.2 to contend that, it is the decision of the Supreme Court of India in the case of Anvar P.V. Vs. P.K. Basheer reported in (2014) 10 SCC 473 which should be followed and not the decision in the case of Shafhi Mohammad Vs. State of Himachal Pradesh reported in (2018) 2 SCC 801 as relied by the petitioner. In support of this argument, reliance is placed on the following decisions of the Supreme Court of India.

(i) Anvar P.V. vs. P.K. Basheer, reported in (2014) 10 SCC 473.
(ii) Shafhi Mohammad vs. State of H.P., reported in (ii) (2018) 2 SCC 801 & (2018) 5 SCC 311.
(iii) Vikram Singh @ Vicky Walia vs. State of Punjab, reported in (2017) 8 SCC 518.
(iv) Ramanbhai Ashabhai Patel vs. Dabhi Ajitkumar Fulsinji, reported in (iv) AIR 1965 SC 669.
(v) Vashist Narain Sharma vs. Dev Chandra, reported in (v) AIR 1954 SC 513.
(vi) P. Ramachandra Rao vs. State of Karnataka,  reported in (vi) 2002(2)GLH 518.
(vii) Rattiram vs. State of Madhya Pradesh, reported in (vii) (2012) 4 SCC 516.
(viii) Pradip Buragohain vs. Pranati Phukan, reported in (viii) (2010) 11 SCC 108.

The judgement accepted this contention and clearly rejected the precedence  of the Shafi Mohammed judgement by the following words. (Para: 50.1)

“it is the correct proposition of law, and the decision of the Supreme Court of India in the case of Shafhi Mohammad Vs. State of Himachal Pradesh (Supra), as relied by the petitioner, should not be taken into consideration as it is not a good law. This argument of the learned senior advocate for the respondent No.2 is accepted.”

The Court however went on to accept the electronic evidence on two other grounds. Firstly the Court had allowed the CCTV footage to be shown to the Court. Secondly, it also relied  on the oral evidence of one of the witnesses based on the electronic evidence. (Para 50.2.2, 50.3.1 etc).

It is our considered view that the honourable Court erred on these two considerations.

Effect of the Judge viewing an Electronic Evidence as his own Experience 

When the Court allows the CCTV footage to be played in the Court and on the basis of which it is admitted as evidence without the mandatory Section 65B certificate, the Judge is himself taking on the role of the Section 65B Certifier stating to the effect that

“What I saw on the computer monitor

(which is organized by the Court, which uses some operating system, some configuration, some application etc, and which interprets the stream of binaries in the electronic container marked as a ‘DVD-exhibit no.xxx’ )

is a true fact of an event that the DVD capture represents.

I also accept that this is the binary stream originally captured by the CCTV camera

(when it scanned the scenery and recorded the pixel status on an imaginary screen in the form of binary notations which the video converter is now showing as black,white or grey pixels on the screen in the Court’s computer which all of us are seeing as one person handing over a form to another person etc.”

The honourable Judge taking this stand has put himself in the capacity of a witness and vitiated the quality of the judgement by giving the judgement based on his own witness.

Oral Evidence as to Electronic Document

Secondly, under para 50.3.3 and others it is indicated that the Returning officer who gave evidence on the witness box orally requested the Court to play the CCTV and appears to have also relied upon the electronic evidence of the CCTV footage. This is contrary to Section 22A of the Indian Evidence Act.

Section 22A states:

“Oral admissions as to the contents of electronic records are not relevant unless the genuineness of the electronic record produced is in question”.

What this implies is that when the issue is “What is contained in the record” and not “Whether the record is genuine or not”, oral statement is not to be considered acceptable. Hence  deciding whether a form was given or not, whether it was returned or not, whether that form was a request for recounting or not are interpretations of the content and the returning officer providing oral evidence on the same was not correct.

In view of the above, the CCTV footage ought not to have been admitted as evidence.

The Court however had the right to use any other evidence to arrive at the fact whether the procedure followed by the returning officer was correct or not and whether the petition had to be upheld or rejected. We have no view on this.

What Could have been done

In such cases the Court could have permitted Section 65B certificate to be produced even at the time of the trial and then taken it in as evidence as a Section 65B certified copy. Such certification could have been provided by whomsoever is in the custody of the DVD at the election commission.

If the original DVD is one which is before the Court and is certified as such without any certification of the contents of the DVD, the Court could have accepted the “DVD” as a container of the potential evidence and marked it as such. It could have then asked some observer (which could have been a Section 79A certified Digital Evidence Examiner) to view the content, and provide a Section 65B certified copy of the relevant content say… “CCTV footage of date ….., time …. to ….”.

This extract could have been copied onto another media and the Secton 65B certificate could have been provided with a Digital Signature. Alternatively, the hash value of the media could have been reproduced in the print copy of the Section 65B report where a reference is made to the container and the said electronic document with perhaps some screen shots at the beginning, end and key parts of the video.

This is the procedure followed by CEAC in certifying CCTV footages and is the Standard Operating procedure in such cases.

This was also the procedure followed by the AMM Court of Egmore, Chennai in the case of “Trisha Defamation” way back in 2004, where despite a CD being available with the Court as evidence, the magistrate requested an external person (Undersigned) to produce the Section 65B certified copy of the content so that it can admit it as evidence.

This was a commendable decision of the Magistrate showing his foresight and correct interpretation of the law, though it did not get into the records because (as I am informed by concerned persons) the case was subsequently withdrawn before the full trial.

The judgement of the Gujarat High Court matter will now go to the Supreme Court and we can await the decision of the Supreme Court and its comments if any on the above points, which are of interest to us irrespective of who wins the election battle.

(P.S: These are the personal views of the author and comments and disagreements are welcome)

Naavi

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K C Saritha Vs A N Vijaykumar, Karnataka High Court judgement

The Dharwar bench of Karnataka High Court had on 25th October 2019 decided an appeal regarding dissolution of marriage in which certain references have been made to Section 65B of Indian Evidence Act. Hence the case is briefly discussed here.

Detailed judgement is available here

The appeal related to a challenge to the earlier family court judgement of 30th July 2013 by the wife who had allegedly committed adultery.

While the wife had several counter allegations including charge of attempt to murder, domestic violence etc., what is important for us is that the husband had produced certain digital evidence which was a recording made through a hidden digital camera in the house which had captured the adulterous behaviour of the wife.

The wife alleged that the DVD was created by morphing the images . It may be noted that the trial of this case occurred prior to 2013 when the Judiciary was not fully conversant with the Section 65B provisions.

This was a case where the adultery was sought to be proved with the DVD and there was perhaps compelling ancillary evidence to prove adultery and the DVD was perhaps one such evidence.

However, the procedural aspects of Section 65B which was perhaps not followed was a hindrance to the admission of the DVD. The Court however took the stand that in the case of adultery, it is not possible to get direct evidence and the court has to rely upon collateral evidence.  Hence the Court took a lenient view of the standard of evidence and decided to accept the evidence despite (as per indications) no certificate had been produced under Section 65B.

In the process of justifying the decision, the Court did make comments and references and to the Shafi Mohammed case which perhaps were not necessary. The Court could have arrived at its judgement even without such comments. The Court should have been bold enough to uphold the evidence on the basis of its conviction derived from circumstantial evidence.

We have no specific comment on the final judgement which perhaps was the justice that the respondent deserved. However we need to record that some of the comments made within the judgement on Section 65B need to be flagged as unwarranted.

We consider that the statement

“It is equally well settled preposition of law that electronic evidence by way of primary evidence is covered under Section 62 of the Evidence Act to which the procedure prescribed under Section 65-B of evidence act is not applicable”,

is not a correct view.

To justify the decision to ignore the non availability of the Section 65B certificate, the Court has taken the excuse of the Shafi Mohammed judgement which itself was a judgement of convenience.

Even the Afzal Guru judgement was one such judgement where the gravity of the offence required the Court to ignore some procedural niceties in the interest of justice. The P V Anvar Vs P.K Basheer judgement called out the Afzl Guru judgement.

We would have been happy if the Court as in the case of Sonu@Amar Vs State of Haryana taken the responsibility on itself and built a case for ignoring the procedure rather than creating a dubious precedent which in the context of the Shafi Mohamed judgement having been referred to a higher bench and the Basheer judgement being of a larger bench, appears questionable.

It is not clear what the Court has considered as “Primary Evidence” to which Section 62 is applicable and “Secondary Evidence” to which Section 65B is applicable.

The judgement has also quoted Ramsingh and others vs Col Ram Singh (Supreme Court order of 7th August 1985) to come to a conclusion that “It will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices provided the accuracy of the recording can be proved”.

In the light of the above,  the Court has exercised its discretion to accept the evidence without Section 65B certificate and using the oral evidence on an electronic document as it was done in the case of Afzal Guru  judgement.

The Court also observed that the contents of the DVD has not been disputed by either of the parties. This would have been sufficient to accept them despite lack of procedural formalities under Section 65B.

The fact that the appellants have not been able to adduce evidence that the DVD was morphed was also a factor under which the evidence could have been accepted without the unwarranted comments invoking Shafi Mohammed judgement.

To conclude, that we may agree that the final order was perhaps correct but the recording of the justification in the detailed judgement was in-correct and was avoidable. We hope that the circumstances under which these comments were made by the honourable judge would always be remembered when this judgement is quoted as a precedent elsewhere.

This should not be considered as a validation of the Shafi Mohammed judgement.

Before we conclude our comments, we need to add a few words on the discussion of “Primary” and “Secondary” evidence that Courts often allude to in respect of electronic evidence.

In the case of electronic evidence, the “Primary Document” is the one which captured the first impressions of what constitutes a document. Most often we have a media like the DVD which is touted as the “Primary Evidence”. But the DVD is a container of several electronic documents of which bits/bytes numbered “………..” represent the impugned document which is presented as evidence.

This “Primary sequence of binary bits” which constitute the document may be scattered around the DVD in different sectors and is recognized as a single document because there is an index table which is read by the computer first to bring together all the relevant data sectors in a sequence and show it as an ascii text or an image. This is a “Rendition” of the binary bits subject to some protocol without which the binary bits cannot depict any evidence.

In the case of a DVD, the binary sequence is recorded as “abc.avi” or some such file perhaps when the recording was terminated manually or automatically (on say hourly basis or otherwise) as it is programmed. Each such file is having a header information identifying how the record can be read by another computer. It is only because of this header information that is inserted into the document that the document displays as a video when played in a computer with the compatible software and hardware. Without such header information and the compatible software and hardware, the “Primary Evidence” is just a bundle of zeros and ones and there is no image or text which the human can see. What the human sees as “Evidence” is what the software wants him to believe.

Section 65B tries to bring in a human who confirms what software and hardware was used to convert the binary sequence into a human viewable document. Without such a human intervention, anything can be produced as evidence and false evidences can get admitted at the trial stage. It is for this reason we have called Shafi Mohammed judgement as a tragedy.  In the instant case justice might have been done by ignoring Section 65B certificate. But if this is used as a vindication of Shafi Mohammed, then false evidences will go into Courts against honest counter parties. This cannot be accepted.

The so called “Primary Evidence” which is a sequence of binary bits derive meaning only with the header information and along with the DVD player which can show it as a video that the Judge or any other person can view. This primary evidence is always seen as an image rendered on the screen of a computer as a secondary document and not as zeros and ones (by a human being). This can be saved again on another media and can be accompanied by a “Contemporaneous Section 65B Certificate” (Refer S Tiwari Vs Ajay Arjun Singh). What can be taken as admissible evidence is the Section 65B certified copy and not the original. The container where the original document resides can always be held by the Court as a property so that further copies can be extracted directly.

We should not confuse with the “Primary evidence” referred to under Section 62 of IEA with the DVD which is the container of the primary evidence.

Just as in  a copy of a printed book, every copy is the original, and only a xerox copy is the secondary copy, in the case of electronic document, every copy which we see or hear is “secondary” and the primary copy is only available for rendering a human viewable secondary copy and not for direct viewing/presentation.

The secondary copy in the case of an electronic document should not be confused with the copies made by a mechanical process referred to under Section 63(2).

I am aware that judges who have all through their life discussed primary and secondary evidence in a non electronic context find it extremely difficult to unlearn their present understanding and appreciate the view point expressed here.

I am also aware that some of the prominent lawyers may also agree more with the the Court’s view of the secondary document being a CD or a second DVD while the first DVD which captured the image first is the “Primary Evidence” and not a container of primary evidence.

I respect all their views and their own logic to come at such views. But we stand by our differential view in this matter and  leave this as a point of Cyber Jurisprudence awaiting some other future judgement to clarify this matter.

Naavi

 

 

 

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New System of Certificate Distribution by CEAC

CEAC has been issuing Section 65B certificates signed by Naavi as the observer since the first such certificate was issued in 2004 in the Suhas Katti case.

So far, the Certificates are issued at the request of some body and given to the person who requests for the certificate. If the certificate is to be produced in a Court, the person who obtains it submits it as a document supporting his evidence under his affidavit.

In such cases, it is not necessary for the CEAC representative to be present in the Court to submit the report to the Court directly. In some cases however, the defence has convinced the Courts to summon my presence to either confirm that I have signed the report and to conduct a cross examination.

In such cross examination, as a Section 65B certifier, the objective can only be to question the integrity of the person providing the report as somebody who is hands in glove with one of the litigants and submitting a false evidence. Obviously, given the credentials of Naavi, this challenge to the credibility is only a formality and has not succeeded and will not succeed even in future.

At the same time, as a Section 65B certificate issuer, I can only state that I followed a certain procedure and made some observations and the results of the observations are in the report. Except for confirming my signature and re-iterating what is already written down in the report, it is not possible for me to add any value to the evidence beyond what is already been present.

It is only when I am invited by the Court as an “Expert Witness” , there is a possibility of my adding value to the evidence in a Court. However, in all instances where the Section 65B certificate is presented by me, it is not possible for the Court to invite me as an Expert.

Despite this, either because the counsels of either side insist on my presence or the limitations of a Section 65B certifier as a witness not being recognized by the Court, I am often asked to be present in Court proceedings as a witness .

This adds to the cost of the person who has taken the certificate since he has to bear the cost of my presence. At the same time, I have to spend my valuable time to attend such proceedings.

In view of the above, I am trying to restrict the issue of Section 65B certificates where the matter is being heard by Courts outside Bangalore.

Going forward, CEAC therefore would like to adopt the following process:

  1. Where required, CEAC will provide the service to convert the electronic evidence into a Certified Computer Output as per Section 65B of Indian Evidence Act.
  2. The Certificate in a digitally signed form would be hosted on the CEAC dropbox created for the litigant and access would be provided to the person who requests the Certificate.
  3. The person who has requested the certificate would be given access to view and download the document from the archive.

In this case, the submission to the Court would be a section 65B certificate from the party who is authorized to view the Certificate and the signature of Naavi of CEAC would be like a contemporaneous certificate for change of status of the electronic document from its state in which Naavi observed it to the storage in the archive.

A template in which the second Section 65B certificate needs to be submitted to the Court would be made available to the person who gets the certificate.

This system would retain the credibility of the certificate as certified from a trusted third party and simplify its submission to the Court by the litigant.

This would be used in all forthcoming certifications. Further clarifications as required would be provided. This would be updated in the CEAC book in the next edition.

Naavi

Also see in Naavi.org

 

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Section 65B Certificate for a Scanned forged document

An interesting hypothetical case was referred to me today on the acceptability of the Section 65B certificate and its impact when a person forges a document, scans it and presents a section 65B certified print copy of the scanned document for admission in a Court.

The query is that ” If the original is not required to be presented”, then the forged document becomes admissible and it becomes difficult to prove the forgery. Therefore does it put the person who is disputing the forged document in a difficult position in law because of Section 65B?

The query is interesting. I am presenting my views on the query and be happy to receive other views.

The answer to the query requires application of both Section 65B interpretation as well as appreciation of paper evidence. Hence it is complicated.

In a practical situation, the presenter of the Section 65B certified Computer output (Presenter) may present the computer output in paper form or in electronic form. If it is in electronic form and in good resolution, the image can be viewed by the signature verifier and a view can be taken just as we verify an ink signature on paper though some of the parameters of verification such as the ink absorption on paper, overlapping, pressure may become little difficult on the scanned image. But parameters like “angle”, “Size”, “Strokes” “The dashes and dots” etc are visible even in the scanned image. A good signature verifier can take a reasonably accurate view of the forgery.

However if the image is of low resolution or it is presented in a print form with unclear printing, then verification is as challenging as when we have a thumb print on paper with smudges.

Normally, a signature verifier refuses to provide a positive opinion unless the image is clear enough and this will apply to a “Verifier of an image of a signature in electronic form on a scanned document”.

It is necessary for us to appreciate that admissibility of electronic document based on the Section 65B certificate is a matter which is different from admitting the signature of a person in the document which is scanned.

In the case of a paper document, if a person produces a forged paper, the signatory is not objecting to the content per-se but only to the signature. It is quite possible that he may say, I am aware that this document was given to me for signature but I refused to sign. Hence “Admission of the document” as evidence does not automatically admit the “Signature within”.

When a signed document is presented by one party and it is challenged as a “Forgery”, it is the responsibility of the presenter to produce additional evidence including the handwriting expert’s opinion to prove the signature. Similarly, in the case of the Section 65B certified document also, though the document as a whole is admitted as evidence at the request of the presenter if the Section 65B certificate is satisfactory, the Court may still expect the presenter to prove that the  signature as it appears is that of the person to whom he is attributing it to. This means that the onus of getting a handwriting expert to confirm the signature lies with the presenter.

If the document is unclear, the handwriting expert may refuse to give a conclusive proof. If he gives a negative report and the document is section 65B certified by a person who is not a “Trusted third party”, then the certifier needs to have a credibility of his own as otherwise he may be charged for perjury by the Court.

A professional Section 65B certifier will not certify a doubtful document and take this risk and a professional handwriting expert will not take the risk of a positive identification based on unclear document.

Hence Section 65B certificate alone though makes the document admissible for trial does not guarantee the “Genuineness” to be taken as established.

The Supreme Court in the Basheer judgement was very clear in making a distinction between “Admissibility” and “Genuineness” and it comes in handy to protect the honest person in the above case whose signature is forged as alleged.

Hence Section 65B does not in any way create an adverse impact in the situation.

Naavi

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Shafi Mohammad decision referred to larger bench

When the media cried out “Courts can rely on electronic records without certificate: SC”., based on the order of a two member bench of the Supreme Court, Naavi.org clearly stated that the order was incorrect and required to be corrected. ( Refer here)

This order was issued on January 30, 2018 and in a way negated an order of a larger bench in the case of PV Anvar Vs P.K Basheer.

Naavi.org has advanced its reasons why this order was both incorrect and also dangerous since it sought to remove an important safeguard provided in law for preventing false electronic evidence to be produced in litigation.

It is now good to know that the matter has been referred to a higher bench in the Civil Appeal nos 2407 of 2018 and 3696 of 2018 for clarification.

We presume that the decision in the P V Anvar case will be reiterated by the larger bench.

Refer:

SC order of 26th July 2019

The tragedy of Shafi Mohammad

Naavi

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Sec 65B certificate can be produced anytime during Trial

Supreme  court in the  of State of Karnataka  vs O.P.Hiremath ruled that non production  of Sec 65B certificate at the time of filing of charge sheet can be corrected later.

Naavi

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