Shafhi Mohammad final judgement on Section 65B issue

We draw attention of the public on our earlier article on the interim view expressed by a bench of the Supreme Court on January 30, 2018, which was headlined by most news publications as “Courts can rely on electronic records without certificate: SC”

We had commented in the context “Recipe for corruption in Judiciary- Supreme Court judgement in Shafhi Mohammad V State of Himachal Pradesh“.

This was a two bench order on an SLP but it had stated in the order that

“An apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect that

if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities.

It was submitted that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate couldnot be mandatory.

It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronicrecord, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original.

This provision could not be read in derogation of the existing law on admissibility of electronic evidence.”

The Court quoted one judgement of 1985 and an American judgement of 1972, (delivered long before Section 65B was conceived for electronic evidence) which stated “…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. “

A case was made out  through two other cases to state

 “Scientific and electronic evidence can be a great help to an investigating agency.”

 “new techniques and devices are order of the day”

“threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.”

Then the judges referred to the Anvar PV Vs P.K. Basheer case as well as the Navjot Sandhu (alias Afsan Guru) case which it over ruled.

The two member bench referred to the Tomasho Bruno (2015) and Ramsingh (1985 judgement) and went on to conclude

“it can be safely held that electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions.”

Proceeding further, the two member bench over ruled the judgement of the three member bench in Basheer Judgement which took into account the recent developments in technology and had examined the question of Section 65B in great length and made the following statements.

“Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.”

” The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by  person who is in a position to produce such certificate being in control of the said device and not of the opposite party.”

“In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.”

Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

Now the bench has released its final judgement in the case and a final order has been issued on 3rd April 2018.

We therefore re-visit the judgement on what is stated in the final order, read in conjunction with what was stated in the earlier order of January 30, 2018.

We would like to state that we have no disagreement to the use of Videography by Police through body cameras which was central to the discussions in this case. We are not in disagreement even with the use of  Surveillance, Profiling, use of Artificial intelligence in Policing etc which are opposed to the policy of “Privacy Protection” which are dear to the Supreme Court judges.

But we are in disagreement with the views of the bench as to the conclusions that they have drawn and also to the fact that they have gone against the tradition of not trying to over rule a verdict of the higher court.

We do agree that the Court should exercise discretion when “Justice so justifies” to bend some rules temporarily. This was done in the Sonu @ Amar judgement  for the right cause and we support it. However the judgement in the Shafhi Mohammad Case is boarne out of a wrong interpretation and hence needs to be opposed.

Our opinion on the reasons of why this judgement is bad for the society and is wrong in law is presented below. This is not to show any disrespect on the Court but to engage in an academic debate on a point where we feel that technology related interpretation has gone wrong in this instance and needs to be corrected if necessary.

However, we feel that this being a two member decision relevant to a specific reference cannot create an over riding law against the three member judgement though the Judges seem to think that it should be.

More discussion will follow…

Naavi