The tragedy of Shafhi Mohammad

“This erroneous interpretation of the bench will directly result in honest persons being harassed by dishonest persons” …. Naavi

The honourable Supreme Court in its order dated 3rd April 2018 pronounced its final order on the Special Leave Petition (SLP 2302 of 2017) regarding the use of videography including body cameras in crime scene evidence capture. There was an earlier interim order of 30th January 2018  on the same SLP which had elaborated more on the issue of Section 65B of Indian Evidence Act.

The order indicates that the Supreme Court wanted to allow such videography and tried to manufacture an acceptable argument to reach a preconceived conclusion. This tendency was earlier seen in the Shreya Singhal case where Section 66A of ITA 2008 was scrapped and also in the Puttaswamy case on Privacy. In all these cases, the Judiciary has come out in poor light as trying to fit its logic to a pre conceived decision. In the process, the judgement creates some untenable and undesirable consequences.

In the Section 66A scrapping, the SC was adamant that it cannot “Read down” the section and nothing short of scrapping it would be acceptable to it. In the Privacy judgement, it was an attempt to rush through a judgement to influence another judgement. Now this Shafhi Mohammad judgement falls into the same category.

In a bid to allow such videography, the two member bench has tried to bend the law in a manner that is highly detrimental to the society and could lead to corruption in judiciary and harassment of innocent citizens by powerful and more intelligent evidence manipulators.

It is not our argument that body cameras and police TV footage should not be used as evidence. In fact these and much more of technology is to be used and is aleady being used.

However, we have a serious objection to the attempt of the two member bench to re-interpret the law as it exists and in derogation of a three member speaking order in the case of P V Anvar Vs Basheer.

The Indian Evidence Act 1872 (IEA) was amended when ITA 2000 was notified and one of the major changes that was brought about  was the introduction of Section 65B for “Admissibility of Electronic Evidence”. This has to be read with Section 65A, Section 22A, Section 17 and Section 3 of the same Act.

Section 65B of IEA is one of the most innovative aspects of ITA 2000/IEA and the Court has failed to recognize the purpose and scope of the section before jumping into passing an order which is bad in law and bad for the community.

The problem which the Police had in using the Videography as evidence was that the videography was captured in some camera and the first copy would be recorded in the device memory which could be the hardware or the removable media. It is then transferred to the Police in the back room and subsequently viewed, edited and presented as evidence in a Court.

In this scenario, if Section 65B was followed, then some body in the Police should have taken the responsibility to give a Section 65B certificate which would pin him down against any manipulation of the evidence.

The Court conveniently ignored  that Section 65B was about presenting a “Computer Output” of an electronic document which may be present either in a camera device or on a server or on a removable media such as a pen drive or memory card. The only requirement was that the Certifier had to take the responsibility to state how he was able to view the document in his computer and how he was able to produce the computer output (say a print out).

Section 65B does not require the lawful owner of the first device which created an electronic impression (sequence of zeros and ones) of an event to either himself give the evidence in the Court. It would suffice if he hands over a memory card to the Police repository in charge with a standard form which identifies the memory card along with a hash value of the entire set of bits and sequences contained there in such as “Videograph of day …. in camera ….) and a signed covering letter. This form of handing over the recorded removable device can be standardised and is not complicated.

Subsequently it is the responsibility of the repository in charge to create clones and copies as may be required along with his own Section 65B certificate. The forensic expert may actually extract much more information than what is visible by using his own tools and he  can provide his findings with his own Section 65B certificate. Similarly if there is a need to edit the video, there is no bar on it under Section 65B except that it has to be recorded as a process in the Certificate. For example if the video is of one hour duration between say 20.30 and 21.30 on 17th April 2018, the edited version may be video between 20.55  to 21.10 and it can be stated as such in the certificate.

What the Court has done now is to say that “No Certificate is required under Section 65B when the electronic document is presented from a device not owned by the person presenting the evidence”. Police can conveniently say that they engaged the services of a free lance video grapher and the camera belonged to him and hence no certificate is required for whatever the Police present.

Even if the evidence is manipulated, there is no responsibility fixed on any body in the absence of the Certificate.

In the same manner, when an electronic document lies on a server not owned by the person it can be manipulated and presented as evidence and the Court has to admit the evidence and ask the defendant to prove that the evidence is wrong.

If therefore some body hacks into a web server, downloads a document, makes changes and captures it, then goes onto to delete the document on the server, he will be in possession of a doctored document which can be produced as evidence which will be automatically admitted. Then it will be the burden on the defendant to prove that the version presented to the Court is fake. This can also happen in WhatsApp messages and Social media where fake documents can be created, captured as uncertified evidence, destroyed in original form and uncertified copy presented to the Court which the Court has no option but to admit.

I would like the two honourable Judges to confirm if they have considered the above scenario before boldly declaring that they would clarify that Section 65B is only a procedural requirement which they consider as redundant in some cases. If they have not, it is necessary for them to review their own decision rather than creating a bad law which exposes the ignorance of the Judiciary.

I accept that the Government has the power to change the law and can even scrap the entire Sections 65A and 65B if they want. But as long as they exist, they exist as independent sections and as the three member bench in the Basheer case rightly observed, it is a special provision applicable for electronic documents and over rides the provisions of Sections 62,63 and 65.

It is therefore incorrect to interpret

” 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.”

It is also incorrect to interpret

“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,”

In fact

“This erroneous interpretation of the bench will directly result in honest persons being harassed by dishonest persons”

In fact

“This erroneous interpretation will pave the way for a high level of Judicial corruption because it provides the discretion to the Judiciary to accept evidence without any body taking responsibility for its existence”

In fact

“This erroneous interpretation will place all web based documents admissible without any person taking the responsibility for stating how it was seen and recorded.”

In fact

“This erroneous interpretation will create more rogue judgements where the lower courts will order against the higher courts by way of clarification”

It is therefore essential that the bench immediately reviews its own order and state nothing beyond, that

“The Supreme Court reserves the right to accept electronic evidence without Section 65B evidence in such cases as it deems fit after a necessary examination”

The MHA should get back to the bench for the review as otherwise the MHA under Mr Modi’s Government will be accused of having manipulated the Judiciary to pave the way for Police to file uncertified fake videos as evidence.

Naavi

(This article is a continuation of this previous article)