[Guest Post] Confusion confounded on Section 65B – Shafhi Mohammad Vs State of Himachal Pradesh

The post has been contributed by Sh.Vijayashankar Na. He is an Information Assurance consultant. He is a pioneer and an acknowledged expert in the field of Cyber Laws, without a formal degree in law . He has authored various books on Cyber laws. Since October 2000, he has been pursuing his own projects maintaining the Virtual Cyber Law College, www.cyberlawcollege.com and the Cyber law Portal www.naavi.org.  In the present post, he has discussed the recent order of the Hon’ble Apex Court with regard to Section 65B, Indian Evidence Act.


Background

The matter arose out of impugned final judgment and order dated 26-06-2014 in CRL.A. No. 404/2009 passed by the High Court of Himachal Pradesh, Shimla.

The judgment in the Shafhi Mohammad Vs State of Himachal Pradesh [SLP (Crl.) No.2302 of 2017]  delivered on 3rd April 2018 passing certain remarks on Section 65B as “Clarifications” has created confusion in the judicial circles.  This 2 member bench judgment contradicts the earlier three-member judgment which stated that Section 65B certificate was mandatory.

The SLP was in the context of use of Videography of Crime scenes and use of Body cameras by Police. These are perfectly legitimate requirements of the Police and a suitable SOP needed to be developed and the reference was meant primarily for that purpose. However, an obvious question was raised as to the admissibility of such evidence in a Court of law and in this context, the bench went to analyze Section 65B and give out its views overturning the Basheer Judgment.  (In Anvar P.V vs P.K.Basheer, 2004)

Section 65B of Indian Evidence Act (IEA) was brought into effect when Information Technology Act of 2000 was notified. It recognized that “Electronic Evidence” which lies inside a device in the form of “Binary Impressions” is not humanly “readable” (which term can be applied to reading of a text, hearing of an audio or viewing an audio-visual electronic document) and hence it has to be interpreted with the use of software application. Software operating system, the processing computer hardware its BIOs operating system, the monitor or speaker or video playing device and their own software etc. The net “Readable” document that a human can read is a result of processing of a stream of zeros and ones by all these connected devices called collectively the “Computer System”.

In view of this dependency, Section 65B envisaged that there should be a human being (Certifier) who will tell the Court, “saw a particular electronic document using certain devices and process and arrived at this copy (Print or soft copy) and to the best of my belief I certify that this is the reliable copy of that electronic document (which is the subject evidentiary document) which the Court can rely upon.” This is the essence of Section 65B.

The central fact of Section 65B which most analysts have ignored is that it refers to a “Computer Output” being produced and admitted as a “Document” without the need for production of the “Original”. Section 65B never envisaged that the original hard disk or CD which contained the “First Binary Impressions of an event captured in electronic form” (which is the so-called Original Evidence) needs to be produced in the Court for admissibility.

Apex Court’s decision in Shafhi Mohammad case

In its order dated January 30, 2018  the Hon’ble Apex Court remarked as follows :

“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 the certificate under Section 65B (4) of the Evidence Act. The applicability of requirement of the certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”

Confusion created / Flaws in the order

(a) No need to generalise the application of the present order –

While there should be  no objection to the Court coming to a discretionary conclusion in any issue on the basis of the circumstances of the case,  there should be no general conclusion that:

“Section 65B certificate is not mandatory when the party is not in possession of the device from which the document is produced.”

As an example, we can see that much electronic evidence relates to web pages which are electronic documents residing in devices which are under the control of web hosts, e-mail hosts etc. If the Shafhi Mohammad judgment has to be taken seriously, no certificate is required where the evidence is a web page or from cloud storage.

(b) The requirement of possession of the device with the person –

The absurdity of the judgment is evident from the fact that Certificate will then be required only when the person is in possession of the device itself. In such cases, he will actually be in a position to surrender the original device itself to the Court and hence the need for Section 65B certificate is minimal or not necessary.

(c) Onus on the defendant –

Another reason why this judgment is to be faulted is that it facilitates the possibility that Manufactured Electronic evidence may be produced by one party which is admitted in the Court and the defendant may be subject to trial. The onus of proving that the evidence is fake now shifts on the defendant. This would be a great injustice to honest victims of harassment breed corruption in the Court.

(d) Misreading of the expression ‘Computer Output’ –

The Court appears to have misread the provisions of Section 65B while passing the judgment and not recognizing that Section 65B envisages that what is certified is a “Computer Output” and not the original or its clone. Computer Output is produced by the Certifier who views the electronic document in his computer device. As long as any person is able to view the electronic document in any device for which he has lawful control, for the time being, he can produce a print out in a specified manner and certify the computer output (printout) under Section 65B.

Thus, a person can view a document in a Cyber Café or in his office computer or in his friend’s computer and provide a certified output since he has access to the system and the document at the time when he viewed it. In the Videography issue which was before the Supreme Court, the person who makes the crime scene videography can submit his recordings to the authorized police who become the repository of such documents. He can archive it and retrieve it on demand and submit the copies with due certification.

The Court failed to recognize that “Device where the original binary impressions are created to capture an event electronically” is not the “Device from which Computer output needs to be produced” for Section 65B certificate.

The Supreme Court should have realized that this judgment may create a wrong perception about the mandatory nature of Section 65B certificate. It gives rise to the need to issue a clarification at its end.

Image from here

L&P Editorial Team

The Law & Practice Blog's editorial team.

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