Section 65B Certificate under Evidence Act is Compulsory for Admission of Electronic evidence : Case Law

Certificate Under Section 65B(4) Evidence Act Is Compulsory for Admissibility of Electronic Evidence: Three Judge Bench of SC - 14 July 2020

Case Law : Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571  , decided on 14.07.2020

The Indian Supreme Court has held in the above case that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of an electronic record. The bench headed by Justice RF Nariman further held that, in a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC.

The bench has also clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. The court said that the judgment in Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 need not be revisited, subject to the above clarifications.

"Is requirement of certificate U/s 65-B(4) Evidence Act mandatory for production of electronic evidence?" before the three judge bench of SC

Earlier, a two-Judge Bench of Justices Ashok Bhushan and Navin Sinha had referred the question in view of the conflict between Shafhi Mohammad Vs. The State Of Himachal Pradesh SLP (Crl.)No.2302 of 2017 and Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473. It was held in Shafhi Mohammad vs. State of Himachal Pradesh that, a party who is not in possession of a device from which the electronic document is produced, cannot be required to produce a certificate under Section 65B (4) of the Evidence Act. In that case, the bench was considering the issue of whether videography of the scene of crime or scene of recovery during the investigation should be necessary to inspire confidence in the evidence collected. In Anvar P.V. vs. P.K. Basheer , it was observed that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

 

Application Can Be Made To Court When Requisite Person Refuses To Issue Such Certificate

The court observed that the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for the production of such a certificate from the requisite person under Section 65B(4) in cases in which such person.

In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.

In Anvar P.V. (supra), it was observed that such a certificate must accompany the electronic record when the same is produced in evidence. In this regard, the Court clarified thus:

"We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC. "

 Sec. 65B(4) of the Evidence Act of furnishing certificate is to be applied when such electronic evidence is produced by a 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, the party asking for such a certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC.

Conclusion : Section 65B(4) stands compulsory for admission of Electronic evidence 

Navy man in Jail for 2 years for Child Pornography, cyber crime in India

Navy man gets 2 years Jail for Child Pornography, cyber crime in India : Cyber crime conviction
By Prashant Mali

In the case of Dilip Kumar Vs State of Telangana 

the accused (who is working in Navy then) is convicted for two years rigorous imprisonment and Rs 15,000 fine.

The story:

Accused has same Family name "Sinha" as the Victim from Hyderabad. Accused, a Navy Personnel belong to State of Bihar and was posted on INS Shikra, Mumbai. Accused had sent a facebook request to this victim minor girl, who also happens to be a child of high ranking defence personnel . The victim after finding the same surname was obliged to accept the facebook friend request. Accused then proposes the victim minor girl for a online relationship, to which she refuses. Accuses starts enticing and harassing the victim by sending her obscene, vulgar, abusing and insulting chat messages. Victim then confides this to her parent, who also tries to persuade the accused not to repeat such actions, but the accused remains adamant. The complaint is filed with the police and the cyber crime wing, CID of Telangana Police (Then AP Police) investigates the crime, to find the accused to be an Indian Navy man.

The Court Proceedings and Order :

Pronouncing judgment today, after examining 11 prosecution witnesses, including outstation witnesses, FSL experts etc., Hon,ble I^st Addl Chief Metropolitan Magistrate, Hon’ble Moka Suvarna Raju (I/c VI ACMM Court) at Nampally convicted the accused to undergo rigorous imprisonment (RI) for 2 years concurrently and Rs. 15,000/- fine for the offences punishable under Sections 67, 67-B (c) (d) of The Information Technology Act 2000 (Cyber Law) and Section 509 of The Indian Penal Code.The case was investigated and trial was monitored by B. Ravi Kumar Reddy, Inspector of Police, Cyber Crimes, CID.

Other Facts of the Case :

1. Certificate under Section 65B was not used in the said case, instead of this prosecution an court relied on confession of accused under section 313 of CRPC. The confession was that the facebook account belongs to himself.

Prosecution relied on forensics report of Victims computer where enticing and abusing text was found in the facebook conversation.

2. There was sexually explicit pictures or videos sent (transmitted), it was pure text messages.

3. Accused by himself went to High Court and got a order to expedite the matter, it was his mistake and why was he misguided ? still remains the Question.

4.This was a rare case where in 2010, evidence was asked from California office of Facebook and they had responded positively to Indian police.

5. This is 24th conviction in a cyber crime matter, in the state of Telangana in India.

My comments & Analysis of the Judgement :

I congratulate the team of Telangana police and Government Lawyers for the conviction, as getting more convictions in cyber crime matter is the need of the hour. I would also congratulate Mr. U.Ramamohan Superintendent of Police, Cyber Crimes in CID AP Hyderabad.  As a defence lawyer, i would say that if lower judiciary only has acted under pressure of the higher courts order, then appreciation of the evidence would not have been done satisfactorily and the accused can be left scot free if he goes in appeal. I also see this is not an isolated case from defence forces, where some sexually frustrated defence personnel try to find relationships online. They feel they are behind the secure wall of defence organisations. An awareness training in the defence induction with example of such cases is the need of the hour. Personnel from Navy may be separated on a high sea from civilians on land, but they should remember cyber space has no boundary and cyber crimes today are investigated by sophisticated police officers. So Janata should not go on their uniform or the old perception about them.
Advice for Common Man : Don't talk Dirty Online with Girls below age of 18 Years.

Analysis of The Judgement Delivered : (This Para added on 6th April)
While Analysing the judgment some startling revelations happened to me about the judge being naive or not updated.
1. The Hon. Court has erred in punishing the accused under a section 66A of The IT Act,2000 which was stuck down by the Hon. Supreme Court in Shreya Singhal v. Union Of India [AIR 2015 SC 1523]
2. The Hon. Court has not appreciated the fact that prosecution 
had failed to confiscate Hard Disk from the computer allegedly 
used by the accused in the cyber cafe and thus was not 
available for further digital forensics examination.
3. The Hon. Court in order to ascertain the location of the 
accused on the date of crime has not appreciated the evidence
of "Call Data Record" of the accused mobile phone number , 
which the prosecution has failed to produce 
4. The Hon. Court has failed to appreciate the fact the facebook 
thou have replied to prosecution, but have not revealed 
the ip address, which binds the computer to the accused 
or his location.
5. Certificate under Section 65(B) as required by The Indian 
Evidence Act was not furnished by the prosecution. 
The effect of the same on the evidence thus produced 
was not appreciated the Hon. Court.
6. In my personal view in the age of Information Technology
concluding that the accused was present on the crime location 
only based on statements of witness doesnt sound fair and 
still raises doubts,
7. Accused agreeing that the profile and email belongs to him 
doesn't bind to crime, it just binds him to the weapon of crime.
8. Hon. Court has failed to appreciate the fact that The screenshot of the girl's Facebook profile shows the birthday written there is 19 Aug 1990, which makes her Adult at the time of Crime, whoever wants to send her friend request or chat. She May have faked her Birthday. This gives benefit of doubt in the favour of the accused 
Laws and Sections used
Offences under Information Technology Act 2000.

 67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form. – Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.- Whoever,-

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or

(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or

(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-

(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used for bonafide heritage or religious purposes
Explanation: For the purposes of this section, “children” means a person who has not completed the age of 18 years.

Section 509 of The IPC.  Word, gesture or act intended to insult the modesty of a woman

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine

Section 313 of The Code Of Criminal Procedure, 1973

313. Power to examine the accused.

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub- section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.